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2025 DIGILAW 827 (AP)

Shaik Khaja, S/O Khaja Nizamuddin v. Vanukuri Koti Reddy, S/O Siva Reddy

2025-07-07

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
Judgment : This second appeal is filed aggrieved against the judgment and decree dated 22-01-2024 in A.S.No.153 of 2019 on the file of the III Additional District Judge, Guntur, confirming the judgment and decree dated 20-4-2019 in O.S.No.583 of 2017 on the file of the Principal Senior Civil Judge, Guntur. 2. The appellant herein is the defendant and the respondent is the plaintiff in O.S.No.583 of 2017 on the file of the Principal Senior Civil Judge, Guntur. 3. The plaintiff initiated action in O.S.No.583 of 2017 on the file of the Principal Senior Civil Judge, Guntur, with a prayer for recovery of a sum of Rs.5,14,600/- on the basis of two promissory notes dated 10-9-2014 each for Rs.1,50,000/- and for costs of the suit. 4. The learned Principal Senior Civil Judge, Guntur, decreed the suit with costs for a sum of Rs.5,14,600/- together with interest at 12% per annum from the date of suit till the date of decree and at 6% p.a. from the date of decree till realization on the principal amount of Rs.3,00,000/-. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal suit before the first appellate Court. The learned III Additional District Judge, Guntur, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.583 of 2017, is as follows: It is pleaded that the defendant having borrowed an amount of Rs.1,50,000/- each under two promissory notes from him on 10-9-2014 executed two promissory notes on the same day agreeing to repay the same together with interest at 24% per annum either to him or his order on demand and subsequently he demanded the defendant for several times both personally and through mediators to discharge the debt due under two promissory notes along with interest, but the defendant postponed and protracting the same on one pretext or the other. Finally, the defendant issued a cheque bearing No.391877 for Rs.1,50,000/- on 22-02-2016 and again he issued another cheque bearing No.391876 for Rs.1,50,000/- on 23-02-2016 drawn on State Bank of Hyderabad, Auto Nagar Branch, Guntur, respectively, towards part payment of the debt covered under two promissory notes and that those cheques were dishonoured on the ground that ‘account closed’ and thereafter, he got issued a legal notice to the defendant on 07-3-2014 under Section 138 of the Negotiable Instruments Act requesting him to make payment of cheques’ amount within 15 days after receiving the notice. The defendant after receiving notice, did not pay the amount, but gave reply notice with false allegations. Therefore, the plaintiff filed criminal complaint against the defendant on the file of the Judicial Magistrate of First Class for Railways, Guntur, vide C.C.No.242 of 2016 and on 01-9-2017, the defendant was convicted and sentenced to undergo simple imprisonment for a period of six months. Hence, he constrained to file the suit for recovery of debt covered under suit promissory notes. 7. The defendant filed written statement denying the contents of plaint averments and further contended as follows: (a) It is contended that on 10-6-2019 his mother by name Shaik Habibunnisa, wife of Shaik Khajamuddin, had borrowed an amount of Rs.5,00,000/- from the plaintiff for her urgent necessities and that due to instigation of the plaintiff, his mother had executed General Power of Attorney cum Agreement vide Document No.5493/2010, dated 10-6-2010, in favour of the plaintiff and one MOU was also executed in between the plaintiff and defendant’s mother on the same day and as per the said MOU, his mother has to clear the amount along with interest within two years from the date of execution of MOU and later, he will cancel the GPA cum Agreement executed in his favour by the defendant’s mother and also the plaintiff had instigated the defendant to execute two empty signed promissory notes and two empty signed cheques for the purpose of security and due to urgent necessities of his mother, they have acted as per terms of the plaintiff and thereafter, he and his mother were fallen interest due to the plaintiff and thereafter, the plaintiff demanded his mother for repayment of the amount. (b) It is further contended that the defendant’s mother cleared off entire debt amount to the plaintiff with interest on 10-9-2014 and thereafter, the plaintiff got cancelled GPA and after cancelling the GPA, the plaintiff with mala fide intention has not returned two empty promissory notes and two empty cheques on the pretext that they were not traced and he will handover the same as and when they were traced and postponed the same. Finally, the plaintiff got filed criminal case against him before the Judicial Magistrate of First Class for Railways, Guntur. The plaintiff is doing money lending business and he used to lend amounts to several persons and there is no relationship between them as creditor and debtor and there is no prima facie case to file the suit against him. Hence, he prayed that the suit is not maintainable and liable to be dismissed with costs. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Guntur, framed the following issues for trial: (1) Whether the suit promissory notes under A and B dated 10-9-2014 are true, valid and binding on the defendant ? (2) Whether the plaintiff is entitled for suit claim from the defendant as prayed for ? and (3) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-11 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-3 were marked. 10. The learned Principal Senior Civil Judge, Guntur, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.153 of 2019 before the learned III Additional District Judge, Guntur, wherein, the following points came up for consideration. (1) Whether the judgment and decree passed by the Principal Senior Civil Judge, Guntur, in O.S.No.583 of 2017 dated 20-4-2019 warrants any interference in this appeal ? and (2) To what relief ? 11. The learned III Additional District Judge, Guntur, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal suit filed by the defendant. and (2) To what relief ? 11. The learned III Additional District Judge, Guntur, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal suit filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.583 of 2017 filed the present second appeal before this Court. 12. After the institution of second appeal by the plaintiff in the suit, this Court ordered notice to the respondent before admission and the said notice is served on the respondent/plaintiff. Heard Sri Prattipati Sajjana Rao, learned counsel for the appellant/defendant and Sri A. Venkat, learned counsel, representing Smt. Patchala Manjusri, learned counsel for the respondent/ plaintiff. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of the Code of Civil Procedure could be admitted only when the appellant satisfies this Court that substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In the case of Boodireddy Chandraiah v. Arigela Laxmi , [ (2007) 8 SCC 155 ] , the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact namely, the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, documentary evidence and contents of documents cannot be held to be raising a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for him to meet the above principles and satisfy the Court whether there exists any substantial question of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgments and decrees passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The respondent is the plaintiff in the suit. He filed the suit for recovery of a sum of Rs.5,14,600/- on the basis of two promissory notes dated 10-9-2014 each for Rs.1,50,000/- and for costs of the suit. The case of the respondent/plaintiff is that the appellant herein borrowed an amount of Rs.1,50,000/- each under Exs.A-1 and A-2 on 10-9-2014 and executed two promissory notes and agreed to repay the same together with interest at the rate of 24% per annum and subsequently the appellant postponed the payment and failed to discharge the amount and lastly the defendant issued a cheque bearing No.391877 for Rs.1,50,000/- on 22-02-2016 and again on 23-02-2016 he issued another cheque for Rs.1,50,000/- and both the said cheques were presented by the plaintiff in the bank but the said cheques were returned with a reason that ‘account closed’. The specific case of the plaintiff is that he instituted a criminal complaint against the appellant herein under Section 138 of the Negotiable Instruments Act, 1881, vide C.C.No.242 of 2016 wherein the appellant herein was convicted by the Judicial Magistrate of First Class for Railways, Guntur. 17. The specific case of the plaintiff is that he instituted a criminal complaint against the appellant herein under Section 138 of the Negotiable Instruments Act, 1881, vide C.C.No.242 of 2016 wherein the appellant herein was convicted by the Judicial Magistrate of First Class for Railways, Guntur. 17. In order to discharge his burden, the plaintiff relied on the evidence of P.Ws.1 and 2. P.W.1 is the plaintiff herein. P.W.2 is one of the attestors in Exs.A-1 and A-2 promissory notes. As per the evidence of P.W.2, the defendant executed Exs.A-1 and A-2 promissory notes and received consideration under Exs.A-1 and A-2 and he is one of the attestors in the two promissory notes Exs.A-1 and A-2 and the defendant himself scribed Exs.A-1 and A-2 promissory notes. Though P.W.2 was cross-examined by the learned counsel for defendant, nothing was elicited from P.W.2 to discredit the testimony of P.W.2. As per the case of the respondent/plaintiff, the defendant himself scribed Exs.A-1 and A-2 promissory notes. The appellant i.e. D.W.1 also admitted in his evidence in cross-examination itself that he scribed the entire contents in Exs.A-1 and A-2 promissory notes except the dates therein. Therefore, the plaintiff discharged his burden to prove Exs.A-1 and A-2 promissory notes, in fact Exs.A-1 and A-2 promissory notes are scribed by the defendant himself which is not at disputed by the appellant herein. 18. To discharge his burden, the appellant relied on his self-testimony as D.W.1 and also examined his own brother-in-law as D.W.2 and also examined his childhood friend as D.W.3. Their evidence is no way helpful to the appellant herein to prove that Exs.A-1 and A-2 suit promissory notes are not at supported by consideration. Moreover, the appellant herein admitted about the execution of Exs.A-1 and A-2 promissory notes. He also admitted that he scribed the entire contents in Exs.A-1 and A-2 promissory notes but his contention is that he did not mention the dates therein in Exs.A-1 and A-2 promissory notes. It is nothing but contrary to his own pleadings in the written statement. As noticed supra, the signatures on Exs.A-1 and A-2 promissory notes are not at disputed by the defendant and the defendant himself scribed Exs.A-1 and A-2 promissory notes, since the respondent/plaintiff discharged his burden to prove Exs.A-1 and A-2 promissory notes, therefore it is for the appellant to disprove the case produced by the plaintiff. As noticed supra, the signatures on Exs.A-1 and A-2 promissory notes are not at disputed by the defendant and the defendant himself scribed Exs.A-1 and A-2 promissory notes, since the respondent/plaintiff discharged his burden to prove Exs.A-1 and A-2 promissory notes, therefore it is for the appellant to disprove the case produced by the plaintiff. It is undisputed by both sides that the appellant herein is not an illiterate, he is Manager of a nationalized bank. During the course of arguments, the learned counsel for appellant fairly conceded that the appellant is working as Manager in State Bank of India i.e. in a nationalized bank. The contention of the appellant is that on the date of borrowing of amount by his mother, he executed Exs.A-1 and A-2 promissory notes as a security. As stated supra, the defendant herein admitted his signatures on Exs.A-1 and A-2 promissory notes. The contention of the appellant is that he executed the said promissory notes as a security for the amount borrowed by his mother. Therefore, it is for the defendant to prove the same but he failed to do so. As stated supra, though the defendant examined his kith and kin as D.Ws.2 and 3, the evidence of D.Ws.2 and 3 is no way useful to prove the defence put-forth by the him in the written statement. Since the execution of Exs.A-1 and A-2 promissory notes is proved by producing cogent evidence by the plaintiff before the trial Court, therefore, there is a legal presumption under Section 118 of the Negotiable Instruments Act in favour of the appellant, but the appellant/defendant has not successfully rebutted the presumption and failed to discharge his burden to prove his defence put-forth by him in the written statement. The defendant admitted his signatures and execution of Exs.A-1 and A-2 promissory notes but he failed to prove that Exs.A-1 and A-2 promissory notes are not supported by consideration. 19. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiff. 19. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 20. In the result, the second appeal is dismissed at the stage of admission, confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. Each party do bear their own costs in the second appeal.