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2024 DIGILAW 702 (AP)

Lolla Suryanarayana Murthy, S/o. Balakoteswara Rao v. Dogiparti Venkata Satyanarayana, S/o. Alluraiah Gupta

2024-06-26

VENUTHURUMALLI GOPALA KRISHNA RAO

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JUDGMENT : Venuthurumalli Gopala Krishna Rao, J. This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellant/defendant challenging the Decree and Judgment, dated 13.11.2002, in O.S. No.277 of 1997 passed by the learned III Additional Senior Civil Judge, Vijayawada [for short ‘the trial Court’]. The Respondent herein is the plaintiff in the said Suit. 2. The respondent/plaintiff filed the Suit for recovery of a sum of Rs.1,95,615/- being the principal and interest due on promissory notes dated 02.05.1991, 06.05.1991, 26.06.1991, 19.11.1991 and 09.02.1992 executed by the defendant in favour of plaintiff for Rs.20,000/-, Rs.10,000/-, Rs.25,000/-, Rs.40,000/- and Rs.5,000/- and for costs. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No.277 of 1997, are as under: The defendant borrowed an amount of Rs.20,000/-, Rs.10,000/-, Rs.25,000/-, Rs.40,000/- and Rs.5,000/- from the plaintiff on 02.05.1991, 06.05.1991, 26.06.1991, 19.11.1991 and 09.02.1992 respectively for his business purpose and executed five separate promissory notes on the respective dates in favour of plaintiff agreeing to repay the same with interest at 24% per annum. Later the defendant made some part payments. Thereafter inspite of several demands and inspite of issuance of legal notices, the defendant did not repay the amount, however, on 23.12.1995 the defendant issued a cheque bearing No.5044788 for Rs.15,000/-, but the same was dishonoured, later the defendant repaid the amount of Rs.15,000/- by way of cash on 25.01.1996 and took away the said dishonoured cheque. 5. The defendant filed a written statement by denying the averments mentioned in the plaint and further contend as under: - The defendant borrowed an amount of Rs.20,000/- and Rs.10,000/- on 02.05.1991 and 06.05.1991 respectively and executed two promissory notes and also made part payments for the above two promissory notes. But the promissory notes dated 26.06.1991, 19.11.1991 and 09.02.1992 are not supported by consideration. The defendant paid an amount of Rs.71,869/- in cash on 09.02.1992 and also an amount of Rs.15,000/- to the plaintiff and the plaintiff endorsed both the payments on 25.01.1996 on the reverse of the cheque which was issued for Rs.15,000/-, the said amount was paid towards full and final settlement of the plaintiff’s claim. The defendant also paid Rs.30,000/- in the presence of P. Guravaiah and Jagan Mohan. The defendant also paid Rs.30,000/- in the presence of P. Guravaiah and Jagan Mohan. The entire debt of the plaintiff was discharged by 10.05.1996, subsequent to the filing of the suit, the defendant paid Rs.30,000/- by way of pay order to the plaintiff on 25.07.1997, instead of returning the pronotes, the plaintiff filed the suit for wrongful gain. 6. Based on the above pleadings, the trial Court framed the following issues : (i) Whether the defendant issued a cheque for Rs.30,000/- in full settlement of suit claim and if the suit claim is decreed to have been discharged? (ii) To what relief? Additional issues: (i) Whether the part payment of Rs.71,867/- to the plaintiff is true, valid and binding on the plaintiff? (ii) Whether the pronotes dated 09.02.1992, 19.11.1991 and 26.06.1991 are not supported by consideration? (iii) Whether the plaintiff is entitled to receive the amount as prayed for? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 was examined and Ex.A1 to Ex.A24 were marked. On behalf of the Defendant DW1 and DW2 were examined and Ex.B1 to Ex.B8 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit with costs vide its judgment, dated 13.11.2002, against which the present appeal is preferred by the appellant/defendant in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Sri V. Subrahmanyam, learned counsel for appellant/defendant and Sri Sai Gangadhar Chamarthi, learned counsel for respondent/plaintiff. 10. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination : 1. Whether the trial Court is justified in holding that the plaintiff proved the execution of suit pronotes and the suit pronotes are true, valid and binding on the defendant and whether the plaintiff is entitled the suit claim? 2. Whether the decree and judgment passed by the trial court needs any interference? 11. Point Nos.1 and 2 : The suit claim is based on Ex.A1 to Ex.A5 promissory notes said to have been executed by the defendant. The defendant admitted the execution of Ex.A1 to Ex.A5 promissory notes. 2. Whether the decree and judgment passed by the trial court needs any interference? 11. Point Nos.1 and 2 : The suit claim is based on Ex.A1 to Ex.A5 promissory notes said to have been executed by the defendant. The defendant admitted the execution of Ex.A1 to Ex.A5 promissory notes. The plea taken by the defendant in the written statement is that he discharged the suit promissory notes debt amount. Since the execution of suit pronotes is admitted by the defendant, the burden is rests on the defendant to prove about the alleged discharge as pleaded by the defendant in the written statement. 12. The plaintiff was examined as PW1. He reiterated his stand as per his respective pleadings. PW1 testified about the borrowing of amount from him by the defendant under Ex.A1 to Ex.A5 promissory notes. As per his evidence, the defendant himself scribed Ex.A1 to Ex.A5 and the defendant made part payments under Ex.A6 to Ex.A8 under Ex.A1 and he also made part payments under Ex.A9 to Ex.A11 on the reverse of E.A2 promissory note. As per his evidence, the defendant also made part payments under Ex.A12 to Ex.A14 and made endorsements on the reverse of Ex.A3 promissory note and the defendant also made part payments under Ex.A15 to Ex.A17 and made endorsement on the reverse of Ex.A4 promissory note. He further admits that the defendant also made part payments under Ex.A18 and Ex.A19 and made endorsement on the reverse of Ex.A5 promissory note. As per the evidenced of PW1, the defendant himself scribed Ex.A1 to Ex.A5 promissory notes and the defendant himself scribed Ex.A6 to Ex.A19 part payment endorsements on the reverse of the Ex.A1 to Ex.A5 promissory notes respectively. It is relevant to say about the admissions made by the defendant in his evidence. He himself admitted in his evidence in cross examination itself that he executed all the five suit promissory notes under Ex.A1 to Ex.A5. He further admits about the part payments made by him under Ex.A6 to Ex.A19 part payment endorsements. Therefore, the execution of suit promissory notes and also all the part payments under Ex.A6 to Ex.A19 are proved by the plaintiff in view of the admission made by the defendant before the Court below. 13. It is the specific case of the defendant that he repaid the amount of Rs.71,867/- on 09.02.1992 to the plaintiff. Therefore, the execution of suit promissory notes and also all the part payments under Ex.A6 to Ex.A19 are proved by the plaintiff in view of the admission made by the defendant before the Court below. 13. It is the specific case of the defendant that he repaid the amount of Rs.71,867/- on 09.02.1992 to the plaintiff. The defendant further pleaded that the plaintiff made endorsement on the back of the cheque for Rs.15,000/- dated 23.12.1995 under Ex.B4 that he received cash of Rs.71,867/- on 09.02.1992 and Rs.15,000/- as against the said cheque dated 23.12.1995. It is quite absurd to believe the contention of the defendant that he obtained endorsement about the alleged payment on 09.02.1992 on the back of the cheque dated 23.12.1995 which was dishonoured by the bank. As per the admission of the DW1, the plaintiff received cash of Rs.71,867/- on 09.02.1992 which was endorsed on the reverse of the dishonoured cheque dated 23.12.1995. The plaintiff is disputing about the alleged payment of Rs.71,867/-. As per his evidence, the said alleged endorsement Ex.B5 on the back of Ex.B4 is a created one. As per the evidence of PW1, the defendant herein issued a cheque for Rs.15,000/- under Ex.B4 dated 23.12.1995 and the said cheque was dishonoured by the bank, subsequently the defendant paid Rs.15,000/- to him on 25.01.1996 and made an endorsement on the reverse of Ex.B4 with his own hand writing and obtained the signature of the plaintiff under the said endorsement. As per the evidence of the plaintiff, the said endorsement was written as “received cash against the cheque”. The contention of the plaintiff is that the defendant taken back the said cheque along with the endorsement thereon and issued a Xerox copy of the said cheque with endorsement and the said Xerox copy is marked as Ex.A24. As per his evidence, originally the words Rs.71,867/- (Rupees seventy one thousand eight hundred and sixty seven only) on 09.02.1992 was not noted on Ex.B4 and Rs.15,000/- and the date on 25.01.1996 is also not noted under Ex.B5 and the defendant made subsequent add the words on the reverse of Ex.B4 as Rs.71,867/- on 09.02.1992 and Rs.15,000/- as on the date on 25.01.1996. The trial Court after observing the handwriting on Ex.B5 and on considering the other evidence on record came to conclusion that the said Ex.B5 endorsement is not at all genuine. 14. The trial Court after observing the handwriting on Ex.B5 and on considering the other evidence on record came to conclusion that the said Ex.B5 endorsement is not at all genuine. 14. Section 73 of the Indian Evidence Act expressly enables the Court to compare the disputed writings with admitted or proved writings to ascertain whether the writing is that of the person, by whom it purports to have been written. Both the parties have not opted for comparison of the hand writings on Ex.B5. The Apex Court in Murari Lal vs. State of Madhya Pradesh, AIR 1980 SC 531 observed that “the duty of the Court to compare the writings and come to its own conclusion cannot be avoided by recourse to the statement that the court is not an expert”. It is thus clear from the above observation of the Apex Court that under Section 73 of Indian Evidence Act, the Court can compare the disputed and admitted hand writings or signature to come to its own conclusion. However, the provisions of Section 73 of Indian Evidence Act have been interpreted by various courts as to how the signatures or hand writings are to be compared when there is no assistance from the expert. On appreciation of entire evidence on record, the trial Court held that the said Ex.B5 endorsement is not at all genuine and it is created endorsement. The material on record reveals that between the said alleged two payments, the gap is about 4 years i.e., from 09.02.1992 to 25.01.1996, in fact, there are part payment endorsements made on 09.02.1992 on the reverse of Ex.A1 to Ex.A4 promissory notes, furthermore Ex.A5 suit promissory note was executed for Rs.5,000/- on 09.02.1992, if at all the defendant really paid an amount of Rs.71,867/- to the plaintiff, what prevented him to obtain endorsement on the back of the Ex.A1 to Ex.A5 promissory notes. There is no explanation by the defendant on the above aspect, therefore, the alleged part payment as pleaded by the defendant is not at all proved by the defendant. Though the defendant examined another witness as DW2, his evidence is no way helpful to prove the pleadings of the defendant that he paid an amount of Rs.71,867/-. Therefore, the above alleged discharge of the suit promissory notes Ex.A1 to Ex.A5 amounts as pleaded by the defendant is not at all proved by the defendant. 15. Though the defendant examined another witness as DW2, his evidence is no way helpful to prove the pleadings of the defendant that he paid an amount of Rs.71,867/-. Therefore, the above alleged discharge of the suit promissory notes Ex.A1 to Ex.A5 amounts as pleaded by the defendant is not at all proved by the defendant. 15. The material on record reveals that the defendant himself admitted that he is the scribe of all pronotes and he also admitted about all the part payments made under Ex.A6 to Ex.A19, but he failed to prove the alleged discharge of the suit pronotes debts as pleaded by the defendant. 16. In the case of Pottem Subbarayudu and another vs. Kothapalli Gangulu Naidu and others, 2000 (5) ALT 759 , the composite High Court of Andhra Pradesh held as follows : “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”. On appreciation of the entire evidence on record, the learned trial Judge rightly came to conclusion that the alleged discharge as pleaded by the defendant is not proved by the defendant. As stated supra, I am also the considered view that the alleged discharge as pleaded by the defendant is not at all proved by the defendant, therefore, the defendant failed to prove the contentions regarding the alleged discharge as pleaded by the defendant. Therefore, the defense taken by the defendant is not substantiated. 17. After careful consideration, the trial Court adequately appreciated the evidence, there is no reason for this Court to arrive at a different conclusion than the one arrived at by the trial Court, I believe the findings arrived by the trial Court are correct and no justifiable reasons have been shown by the appellant/defendant for arriving at different conclusion. For the foregoing reasons, I do not find any illegality in the said decree and judgment passed by the trial Court and it requires no interference. 18. In the result, the Appeal Suit is dismissed, by confirming the decree and Judgment dated 13.11.2002, in O.S.No.277 of 1997 passed by the learned III Additional Senior Civil Judge, Vijayawada. Considering the circumstances of the case, I order that each party do bear their own costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.