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2025 DIGILAW 1863 (TS)

K. Saraswathi v. Alugolu Praveen Kumar

2025-12-18

RENUKA YARA

body2025
JUDGMENT : Renuka Yara, J. Heard Sri M. Ramgopal Rao, learned counsel for the appellant/respondent/defendant and Sri P. Rama Sharana Sharma, learned counsel for respondent/appellant/plaintiff on admission. Perused the record. 2. This Second Appeal is preferred by the appellant aggrieved by the judgment and decree dated 27.09.2024 in A.S.No.31 of 2023 on the file of the learned Principal District Judge, Bhadradri-Kothagudem District at Kothagudem (for short ‘the First Appellate Court’) allowing the Appeal Suit with costs throughout setting aside impugned judgment and decree dated 31.10.2023 in O.S.No.37 of 2019 on the file of the Principal Senior Civil Judge, Kothagudem, Bhadradri-Kothagudem District (for short ‘the Trial Court’), wherein a suit filed for recovery of money has been dismissed. I.A.No.2 of 2025 in the present appeal is preferred to condone delay of (111) days in filing of the Second Appeal. 3. The background facts leading to the filing of the suit are that there is acquaintance between the appellant/defendant and the respondent/ plaintiff and on the basis of said acquaintance, the appellant borrowed Rs.5,00,000/- on 10.07.2016 from the respondent with a promise to repay the amount with interest @ 24% per annum on demand. In proof of said transaction, a pronote is executed by the appellant in favour of the respondent. In spite of repeated demands, the appellant failed to repay the borrowed amount and therefore, a suit for recovery of amount is filed. The appellant herein contested the suit by filing written statement denying any money lending transaction or loan transaction in totality claiming that the pronote produced is a forged and fabricated document. Subsequently, an additional written statement is filed stating that the respondent is engaged in a money lending business without license and therefore, the promissory note cannot be a basis for filing suit for recovery of money. 4. The fact situation coupled with the oral evidence of the parties is taken into consideration by the learned Trial Court and it is held that the respondent herein has proven execution of pronote, but there is failure on the part of the appellant in proving forgery. 4. The fact situation coupled with the oral evidence of the parties is taken into consideration by the learned Trial Court and it is held that the respondent herein has proven execution of pronote, but there is failure on the part of the appellant in proving forgery. It is held that when the Interlocutory Application filed under Section 45 of Indian Evidence Act to send the promissory note for comparison of signature of the appellant with admitted signatures on the written statement, vakalath and other documents, when said petition was dismissed, the appellant did not challenge said order and said order has attained finality. Once the appellant did not choose to challenge the dismissal order in the Interlocutory Application filed to send the pronote for examination by Handwriting Expert, it is held that the appellant failed to discharge the onus of proof about the pronote being a forged document. However, on the ground that the suit filed by the respondent is hit by Section 9 of A.P. (Telangana Area) Money Lenders Act 1349 Fasli i.e. doing money lending business without license, the suit has been dismissed. Aggrieved by the same, the respondent preferred First Appeal before the learned First Appellate Court vide A.S.No.31 of 2023. 5. The First Appellate court has examined the case of the respondent/plaintiff about the loan transaction as evidenced by Ex.A1 Pronote holding that the appellant/defendant has taken inconsistent pleas in her written statement about the loan transaction. Firstly, the appellant has denied money transaction and stated that Ex.A1 pronote is a forged document. Alternatively, a plea is taken that the transaction is hit by Section 9 of A.P/Telangana Money Lending Act. During evidence, it is stated that the appellant is not aware about the transaction at all. The appellant, who is an educated Government Teacher, taking a stance of ignorance about the suit transaction has been held against her. Further, the First Appellate Court concurred with finding of Trial Court about the stand taken by the appellant that Ex.A1 Pronote is a forged document, it is noted that a petition was filed under Section 45 of Indian Evidence Act and said Interlocutory application has been dismissed. Further, the First Appellate Court concurred with finding of Trial Court about the stand taken by the appellant that Ex.A1 Pronote is a forged document, it is noted that a petition was filed under Section 45 of Indian Evidence Act and said Interlocutory application has been dismissed. Thereafter, the court has compared the signature of the appellant as is contemplated under Section 73 of Indian Evidence Act and it is held that the signatures are similar and therefore, discarded the plea of Ex.A1 pronote being a fabricated document. 6. With respect to the suit being hit by Section 9 of A.P. (Telangana Area) Money Lenders Act 1349 Fasli, the learned Appellate Court held that though ten (10) cases are listed, there are only three suits and two CCs and one EP, which means, there are only three suits filed for recovery of money and two out of them for cheque bounce and one for Execution Petition, all within three lending transactions. It is held that sporadic instances of money lending does not fall under the definition of money lending business. It is further held that there is no evidence to prove that the respondent is a money lender. Lastly, it is held that having taken the view that there is no acquaintance with the respondent and that Ex.A1 pronote is a forged document, the appellant cannot be permitted to take a fresh plea to defeat the suit claim. As such, the appeal was allowed and the suit has been decreed. Aggrieved by the same, the present Second Appeal is preferred. 7. The Second Appeal is preferred raising the following substantial questions of law: 1. Whether the appellate court below properly appreciated the evidence on record or not? 2. Whether the Judgment and Decree of appellate court is perverse or not and contrary to the evidence or not? 3. Whether the Judgment and Decree of the appellate court is justified in allowing the Appeal Suit by decreed the Suit in O.S. No.37 of 2019? 4. Whether the appellate court allowing the appeal on the ground that the appellant herein/respondent/defendant utterly failed to adduce the evidence to prove that respondent herein/appellant/plaintiff is a money lender? 5. Whether the Appellate Court below justified in allowing the appeal by decreeing ex-parte? 6. 4. Whether the appellate court allowing the appeal on the ground that the appellant herein/respondent/defendant utterly failed to adduce the evidence to prove that respondent herein/appellant/plaintiff is a money lender? 5. Whether the Appellate Court below justified in allowing the appeal by decreeing ex-parte? 6. Whether the Appellate Court is justifying in allowing the Appeal Suit by decreeing Original Suit without whisper service of the Notice on the respondent/defendant? 8. A perusal of the above questions of law shows that the questions at Sl.Nos.1 and 2 are about appreciation of evidence on record by the Appellate Court being perverse. This Court sees that there is no substance in said substantial questions of law as both the Trial Court as well as the First Appellate court have found that the respondent has proven the suit transaction i.e. execution of Ex.A1 pronote by the appellant herein. Further, there is a similar fact finding about failure on the part of the appellant to send the disputed signature on the pronote for being compared by a Handwriting expert as the Interlocutory Application filed under Section 45 of Indian Evidence Act was dismissed and no further steps were taken by the appellant to challenge the same by filing a Civil Revision Petition. Thus, this Court is of the opinion that both the Trial Court and the First Appellate Court have given similar fact finding about the loan transaction between the appellant and the respondent. 9. Coming to the substantial question at Sl.No.3, it is frivolous with no substance whatsoever to qualify as a substantial question of law. Similarly, substantial question at Sl.No.4 about failure on the part of the appellant to adduce evidence to the effect that the respondent is a money lender is a fact borne by record. The filing of three suits for recovery of money, two cheque bounce cases and one execution petition, which involve at best three loan transactions, can certainly not be a ground to call or categorize the respondent as a money lender. There has to be more convincing proof to show that the respondent is engaged in money lending business without license. The substantial question at Sl.No.5 is about decreeing the appeal ex-parte. In case, the appellant has chosen to remain ex-parte in appeal, the same would not come in the way of adjudication of the matter. There has to be more convincing proof to show that the respondent is engaged in money lending business without license. The substantial question at Sl.No.5 is about decreeing the appeal ex-parte. In case, the appellant has chosen to remain ex-parte in appeal, the same would not come in the way of adjudication of the matter. Therefore, there is no substance in the substantial questions at Sl.Nos.5 and 6. 10. As discussed aforesaid, there are absolutely no substantial questions of law involved to be considered in the present Second Appeal. The only question of whether the suit transaction was hit by Section 9 of A.P. (Telangana Area) Money Lenders Act 1349 Fasli was considered by the First Appellate court and has rightly given a finding that stray incidents or sporadic incidents of money lending to three people and filing three suits for recovery of money is not a ground to categorize the respondent as a money lender. Once the said question of law was answered by the First Appellate court, there remains nothing to be adjudicated herein. As such, the second appeal lacks merits and is liable to be dismissed at the stage of admission. 11. I.A.No.2 of 2025 is filed to condone delay of (111) days in filing the Second Appeal and the reasons stated by the appellant are that due to family problems and health issues of his elder son, he could not approach his counsel at the First Appellate Court to obtain the certified copy of judgment and decree in A.S.No.31 of 2023. The respondent filed counter contending that the reasons stated by the appellant are without any proof and the Second appeal has been preferred only after filing of the Execution petition without showing any substantial question of law. 12. It is seen that the impugned judgment was passed on 31.12.2024 and the present Second Appeal is filed on 15.04.2025. There is no information given about such serious health issues being suffered by his son which prevented him even to contact his counsel through phone. The family problems and ill-health of the appellant’s son, does not seem to be so disabling such as to prevent the appellant from preferring the Second Appeal. It is apparent that the appellant did not intend to prefer the Second Appeal until he received summons in execution proceedings initiated by the respondent. The family problems and ill-health of the appellant’s son, does not seem to be so disabling such as to prevent the appellant from preferring the Second Appeal. It is apparent that the appellant did not intend to prefer the Second Appeal until he received summons in execution proceedings initiated by the respondent. Waiting for the respondent to initiate execution proceedings without preferring the Second Appeal in time only shows negligence and lack of due diligence, as such there are no grounds to condone the delay of (111) days in filing the present Second Appeal and the application is liable to be dismissed. 13. In the result, the I.A.No.2 of 2025 filed seeking to condone delay of (111) days is dismissed and the Second Appeal is also dismissed at the stage of admission confirming the judgment and decree dated 27.09.2024 in A.S.No.31 of 2023 on the file of the learned Principal District Judge, Bhadradri-Kothagudem District at Kothagudem. Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.