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2024 DIGILAW 785 (AP)

M. Sarojamma v. Maladri

2024-07-16

V.GOPALA KRISHNA RAO

body2024
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/defendant challenging the Decree and Judgment, dated 03.01.2001, in O.S. No. 39 of 1999 passed by the learned Principal Senior Civil Judge, Kurnool [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.2,30,762/- being the principal and interest due on two promissory notes dated 10.05.1998 and 23.05.1998 executed by the defendant in favour of plaintiff for Rs.96,000/- and Rs.94,000/- respectively 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. 39 of 1999, are as under: The defendant borrowed an amount of Rs.96,000/- from the plaintiff on 10.05.1998 for her legal necessities and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 24% per annum. Again the defendant borrowed an amount of Rs.94,000/- from the plaintiff on 23.05.1998 for her legal necessities and executed a promissory note on the same day in favour of plaintiff agreeing to repay the same with interest at 24% per annum. But inspite of several demands made by the plaintiff, the defendant did not choose to pay any amount. Hence, Plaintiff got issued a legal notice to defendant demanding her to pay the amount covered under two pronotes, but the defendant neither paid the amount nor gave any reply to the notice issued by the plaintiff. Hence, the plaintiff is constrained to file the suit. 5. The defendant filed a written statement by denying all the averments mentioned in the plaint and further contended as under: The defendant name is Sarojamma, but not Saroja as described in the plaint. The plaintiff is a close friend of one A.Manikya Rao. The defendant's daughter was given in marriage to the son of Manikya Rao. The marriage was performed in the year 1998, even prior to 1998 Manikya Rao is known to the family of defendant. The plaintiff is a close friend of one A.Manikya Rao. The defendant's daughter was given in marriage to the son of Manikya Rao. The marriage was performed in the year 1998, even prior to 1998 Manikya Rao is known to the family of defendant. After the marriage of defendant's daughter with the son of Manikya Rao, disputes arose between the two families and the said Manikya Rao in collusion with the plaintiff, has created these two pronotes by forging the signatures of the defendant in the pronotes. The plaintiff has no capacity to lend any amount much less suit amount. This defendant never borrowed any amount from the plaintiff and prayed the Court to dismiss the suit. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the suit pronote is true and genuine? (ii) Whether the plaintiff has no capacity to lend the amount? (iii) Whether the plaintiff is entitled to suit amount as prayed for? (iv) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 and PW2 were examined and Ex.A1 to Ex.A6 and Ex.X1 to Ex.X6 were marked. On behalf of the Defendant DW1 was examined and Ex.B1 to Ex.B6 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 03.01.2001, 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 Smt. Kopparthi Sumathi, learned counsel for appellant. None appeared for the respondent. 10. The learned counsel for appellant would contend that the plaintiff is not having sufficient capacity to pay the pronotes amount to the appellant and the Ex.A1 and Ex.A2 pronotes are fabricated documents, the learned trial Judge failed to appreciate the evidence on record in a proper manner and came to wrong conclusion and decreed the suit and she further contend that the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge. 11. 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 behalf of appellant before this Court, the following points would arise for determination: 1. 11. 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 behalf of appellant before this Court, the following points would arise for determination: 1. Whether the trial Court is justified in holding that the suit promissory notes are true, valid and binding on the defendant and the plaintiff is entitled the suit claim? 2. Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent? 12. Point No. 1: Whether the trial Court is justified in holding that the suit promissory notes are true, valid and binding on the defendant and the plaintiff is entitled the suit claim? The case of the plaintiff is that the defendant borrowed an amount of Rs.96.000/- on 10.05.1998 in cash from the plaintiff for her legal necessities and executed a demand promissory note in favour of the plaintiff on the same day agreeing to repay the same with interest at 24% p.a. The plaintiff further pleaded that on 23.05.1998 the defendant again borrowed a sum of Rs.94,000/- from the plaintiff in cash for her legal necessities and agreed to pay the same with interest at 24% p.a. and executed another promissory note. The plaintiff further pleaded that inspite of repeated demands made by the plaintiff, the defendant failed to discharge the pronote debt and that the plaintiff is constrained to file the suit. 13. The defendant has taken a plea in the written statement that she never saw the face of the plaintiff and she does not know the plaintiff and the suit pronotes Ex.A1 and Ex.A2 are fabricated documents and not supported by consideration. Since the appellant denied the execution of Ex.A1 and Ex.A2 promissory notes, the initial burden rests on the plaintiff. To prove his case, the plaintiff got exhibited the two original promissory notes as Ex.A1 and Ex.A2. As per Ex.A1 and Ex.A2, there are no attestors to Ex.A1 and Ex.A2 suit promissory notes. Ex.A1 and Ex.A2 reveals that the suit pronotes were scribed by PW2 and the same are executed by the defendant in favour of the plaintiff on the respective dates as stated supra. To discharge his initial burden, the plaintiff examined himself as PW1. As per Ex.A1 and Ex.A2, there are no attestors to Ex.A1 and Ex.A2 suit promissory notes. Ex.A1 and Ex.A2 reveals that the suit pronotes were scribed by PW2 and the same are executed by the defendant in favour of the plaintiff on the respective dates as stated supra. To discharge his initial burden, the plaintiff examined himself as PW1. He deposed in his evidence about the borrowing of Rs.96,000/- on 10.05.1998 by the defendant and also execution of Ex.A1 promissory note. He further deposed in his evidence in the same month i.e. on 23.05.1998, the defendant again borrowed an amount of Rs.94,000/- from the plaintiff and executed Ex.A2 promissory note in favour of the plaintiff. As noticed supra, there are no attestors to the Ex.A1 and Ex.A2 pronotes, the plaintiff to discharge his burden examined the scribe of Ex.A1 and Ex.A2 pronotes as PW2. 14. PW2 deposed in his evidence about the borrowing of amount of Rs.96,000/- by the defendant under Ex.A1 pronote and also borrowing of Rs.94,000/- under Ex.A2 pronote by the defendant and execution of promissory notes in favour of the plaintiff. PW2 was cross examined by the learned counsel for defendant. In cross examination, nothing was elicited from PW2 to discredit the testimony of PW2. In lengthy cross examination, the evidence of PW2 is not at all disturbed on the material aspects of the case. It is not the case of the defendant that she is having enmity with PW2, due to that he deposed falsehood against the defendant. The plaintiff also issued a legal notice under Ex.A3 to the defendant prior to institution of the suit. The said notice was returned under Ex.A4. It is not the specific case of the appellant that the address mentioned in Ex.A3 not belongs to her. 15. It was pleaded by the appellant in the written statement that the plaintiff is not having sufficient capacity to lend amount under Ex.A1 and Ex.A2 pronotes. PW2 was cross examined by the learned counsel for defendant. In cross examination, he clearly stated that he is having own cool drink shop and he established the said cool drink shop at about 8 years ago and he has been getting daily income at the rate of Rs.500/- from out of his cool drink shop business and he is also having bank account in Andhra Bank, Kurnool. In cross examination, he clearly stated that he is having own cool drink shop and he established the said cool drink shop at about 8 years ago and he has been getting daily income at the rate of Rs.500/- from out of his cool drink shop business and he is also having bank account in Andhra Bank, Kurnool. In cross examination when elicited, the plaintiff stated that in the year 1995 prior to Ex.A1 and Ex.A2 promissory notes, the defendant borrowed money of Rs.30,000/- and later she repaid the same. The evidence of PW1 clearly goes to show that he is a business man and he used to earn Rs.15,000/- per month on cool drink business, in those days in the year 1998, therefore, I am unable to accept the contention of the learned counsel for appellant that the plaintiff is not having sufficient capacity to lend the amount of Rs.96,000/- and Rs.94,000/- under Ex.A1 and Ex.A2 promissory notes respectively. The learned trial Judge by giving cogent reasons came to conclusion that the plaintiff discharged his burden to prove that he is having capacity to lend the money. To rebut the evidence adduced by the plaintiff, the appellant has not placed any material before the trial Court to show that the plaintiff has no capacity to lend money under Ex.A1 and Ex.A2 promissory notes. Further more, it is the specific case of the defendant that she does not know the plaintiff and she has never seen the plaintiff, but she pleaded in the written statement that the plaintiff is not having any capacity to lend money. For the aforesaid reasons, the appellant failed to prove that the plaintiff is not having capacity to lend money under Ex.A1 and Ex.A2 promissory notes. 16. Another defense put forth by the appellant is that her name is Sarojamma but not Saroja as stated in the plaint and to prove the same the defendant also relied on a mortgage deed alleged to have been executed by her in the Sub-Registrar Office, which is marked as Ex.B6. In the case on hand, the plaintiff has summoned some documents under Ex.X1 to Ex.X6. The respondent/plaintiff has summoned the documents from the District Registrar of Assurances, Kurnool with regard to Annapurna Arundatheeyula Abhivruddi Sangham, in which the defendant was a president for the said Sangam. In the case on hand, the plaintiff has summoned some documents under Ex.X1 to Ex.X6. The respondent/plaintiff has summoned the documents from the District Registrar of Assurances, Kurnool with regard to Annapurna Arundatheeyula Abhivruddi Sangham, in which the defendant was a president for the said Sangam. To prove the plea that the defendant also used to sign as Saroja, the respondent/plaintiff summoned the documents from the District Registrar of Assurances, Kurnool and got exhibited Ex.X1 to Ex.X6. Those are confronted to defendant i.e. DW1, the appellant i.e. DW1 admits that she signed as M.Saroja in bylaws and memorandum of society and she has also signed as Saroja only in the documents of the said Sangam. DW1 further admits in cross examination that she was a president of the said society and Ex.X1 is the application sent by the defendant being the president of the said society to the District Registrar of Assurances, Kurnool which contains her signature as M. Saroja only and Ex.X2 is the signature of the defendant contains the copy of resolution. On seeing Ex.X1 to Ex.X6, it is made clear that the defendant used to sign her signatures as Saroja. Therefore, the contention taken by the appellant that her name is not Saroja, but her name is Sarojamma is unbelievable and cannot be taken into consideration. 17. The plaintiff to discharge his burden examined himself as PW1 and also examined the scribe of Ex.A1 and Ex.A2 promissory notes as PW2. As stated supra, there are no attestors to Ex.A1 and Ex.A2 promissory notes, therefore, the plaintiff discharged his burden by examining the scribe of Ex.A1 and Ex.A2 pronotes as PW2. As stated supra that the evidence of PW2 is well supported the case of the plaintiff. To disprove the evidence placed by the plaintiff and to rebut the evidence adduced by the plaintiff, the defendant, except examining herself as DW1, did not produce any evidence. 18. The Apex Court in a case of Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal, 1999 INSC 69 : (1999) 3 SCC 35 held as follows: Once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Section 118 of the Negotiable Instruments Act deals with the presumptions as to the negotiable instruments. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Section 118 of the Negotiable Instruments Act deals with the presumptions as to the negotiable instruments. One of such presumptions is: “That every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.” This presumption is based upon a principle and is not a mere technical provision. The principle incorporated being inferring of a presumption of consideration in the case of a negotiable instrument. The Apex Court held in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1959 INSC 118 : AIR 1960 SC 100 as follows: “The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.” In the case on hand, the plaintiff discharged his burden by placing cogent and reliable evidence on record. To disprove the said evidence the defendant did not adduce any evidence, except examining herself as DW1, to prove her pleadings taken in the written statement. Therefore, the finding of the learned trial Judge that the suit promissory notes are true, valid and binding on the defendant is holds good and the decree and judgment passed by the trial Court is perfectly sustainable under law. The point No. 1 is answered accordingly. 19. Point No. 2: Whether the decree and judgment passed by the trial court needs any interference? If so, to what extent? In view of my findings on point No. 1, I do not find any illegality in the decree and judgment passed by the trial Court and the decree and judgment passed by the trail Court is perfectly sustainable under law and it requires no interference. The point No. 2 is answered accordingly. 20. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 03.01.2001, in O.S. No. 39 of 1999 passed by the learned Principal Senior Civil Judge, Kurnool. No order as to costs. 21. The point No. 2 is answered accordingly. 20. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 03.01.2001, in O.S. No. 39 of 1999 passed by the learned Principal Senior Civil Judge, Kurnool. No order as to costs. 21. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.