Page No.1 of 28 O.S.358/2013
Dated 28022020. II ADJ Court, VJA.
IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE:
VIJAYAWADA
PRESENT: B.V.L.N.CHAKRAVARTHI,
II ADDL. DISTRICT JUDGE.
FRIDAY, THIS THE 28th DAY OF FEBRUARY 2020.
O.S.No.358/2013
Between:
Ganne Siva Prasad. ….PLAINTIFF.
A N D
Bollu Mallikarjuna Rao. …DEFENDANT.
This suit coming on 03.02.2020 before me for final hearing in the presence of Sri K.Benarjee, Advocate for plaintiff and of Sri A.Kishore, Advocate for defendant, upon hearing and considering the material on record and the matter having stood over for consideration till this day, the court delivered the following:
JUDGMENT
1)This is a suit filed for recovery of money based on three promissory notes dated 17.09.2010 said to have been executed by the defendant in favour of the plaintiff.
Brief averments of the plaint:
2)The defendant borrowed an amount of Rs.13,00,000/ on 17.09.2010 from the plaintiff for family expenses at Vijayawada and executed the suit promissory of even date for Rs.5,00,000/,
Rs.4,00,000/ and Rs.4,00,000/ respectively, agreeing to repay the amount with interest @ 18% p.a. Subsequently, the plaintiff requested the defendant to discharge the amount due under the suit promissory notes, but the defendant did not choose to repay the debt amount and postponing the same on some pretext or the other. The defendant is not entitled to any relief under the Debt Relief Laws. Hence, the suit.
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Dated 28022020. II ADJ Court, VJA.
Brief averments of the written statement:
3)The allegations in the plaint are all false and the suit is not maintainable in law. The defendant did not borrow any amount under the three suit promissory notes. The defendant and plaintiff are distant relatives. The plaintiff is resident of Krishnalanka, Vijayawada, and he is doing finance business. There were some financial and family disputes between the plaintiff and the defendant. Therefore, the plaintiff to take vengeance and to have wrongful gain, foisted criminal complaint against the defendant and his family members. The plaintiff foisted criminal case with the help of the then Circle Inspector of Police, Tenali and also using political influence. On account of the criminal complaint filed by the plaintiff, on 17.09.2010 at about 07.00 a.m. two constables of Tenali Taluq Police Station came to the defendant house at Angala
Kuduru village and informed the defendant that a complaint was filed against the defendant and his family members and has taken the defendant and his son Jagadeesh to Taluq Police Station. There defendant noticed the plaintiff and his daughter Sindu Sri and one
Gutta Gopichand, who is from Pedapulivarru Village and some other persons. Later one advocate along with Mr.C.Jayasankara Prasad and
Mr.Kanagala Pitchaiah of Angala Kuduru village came to police station.
Then Circle Inspector of Police, Taluq Police Station, Mr.Tupakula
Murali Krishna forced the defendant and his son to settle the previous disputes between the defendant and plaintiff. Circle Inspector of Police threatened the defendant that if he did not settle the disputes, a criminal case will be filed against the defendant and his family members. Circle Inspector of Police, plaintiff and his persons did not
Page No.3 of 28 O.S.358/2013
Dated 28022020. II ADJ Court, VJA.
give any opportunity to the defendant to express his grievance. Circle
Inspector of Police pressurized and coerced the defendant and ultimately made the defendant to execute three promissory notes for
Rs.5,00,000/, Rs.4,00,000/ and Rs.4,00,000/ respectively in favour of the plaintiff, as if defendant borrowed the amounts for business and family expenses. They also made the defendant to sign on two Rs.100/ nonjudicial stamps. Out of said two nonjudicial stamps, the plaintiff utilized one stamp paper for preparation of surety bond for the debts mentioned in the promissory notes and it was prepared in the name of
Mr.K.Pitchaiah. After preparation of surety bond, subscriber read over the contents and then the plaintiff and Circle Inspector of Police did not satisfy to the same, and the plaintiff got prepared another agreement as agreement of sale as if the defendant agreed to sell his immovable property in favour of Mr.K.Pitchaiah, and it was prepared on another
Rs.100/ nonjudicial stamp signed by the defendant. All the three promissory notes and the bond were prepared on 17.09.2010. The subscriber of all the documents is Mr.C.Jayasankara Prasad and
Mr.K.Vijaya Kumar, who accompanied the plaintiff to the police station signed all the documents as the attestor. Mr.Gutta Gopichand also signed as attestor on the surety bond. Circle Inspector of Police forced the son of defendant to sign as attestor on the sale agreement taken in the name of Mr.K.Pitchaiah. The defendant was given with photo copies of all the said documents. Thereafter, the Circle Inspector of Police, plaintiff and his men threatened the defendant to settle the disputes within one month, or they will file suits basing on the promissory notes, and they will involve the defendant and his family members in criminal cases. They also threatened the defendant not to take any action
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Dated 28022020. II ADJ Court, VJA.
regarding the above acts. In the said compelling circumstances, the promissory notes and the above surety bond and sale agreement came into existence. The defendant did not borrow any amount under the suit promissory notes. He did not execute the surety bond voluntarily. He also did not execute the sale agreement voluntarily in favour of
Mr.K.Pitchaiah. They were executed under coercion and undue influence used by the plaintiff with the assistance of Circle Inspector of
Police, Tenali Taluq Police Station. The defendant later sent representation to Human Rights Commission, Hyderabad, Member of
Legislative Assembly, Tenali, Circle Inspector of Police, Tenali Taluq
Police Station, Deputy Superintendent of Police, Tenali and
Commissioner of Police, Vijayawada, intimating them about the illegal acts. The plaintiff bore grudge against the defendant as the defendant initiated actions, and then the plaintiff gave a false report against the defendant and his family members. The defendant filed a case before
Hon’ble High Court and Hon’ble High Court granted stay of proceedings
in C.C.211/2011 on the file of II Addl.Judicial Magistrate of I Class,
Tenali.
The defendant after receiving suit summons and photo copies of the documents in the suit, came to know that the plaintiff obtained signatures of one Mr.M.Kushi Bhushana Rao as one of the attestors of all the three promissory notes prior to filing of the suit.
All the suit promissory notes contain place of hall makam as
Tenali. The suit promissory notes were obtained forcibly from the defendant at Taluq Police Station, Tenali. So, this Court has no jurisdiction to try the suit.
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Dated 28022020. II ADJ Court, VJA.
The defendant denies the allegations of the plaintiff that the plaintiff requested the defendant to pay the amount due under the suit promissory notes, and that the defendant did not pay the same and postponing the repayment on one pretext or the other. The plaintiff is not entitled to the amount due under the suit promissory notes, as defendant did not borrow any amount from the plaintiff, and the suit promissory notes are devoid of consideration. Therefore, the defendant prays the Court to dismiss the suit.
4)Basing on the above pleadings the following issues were settled for trial:
1) Whether the plaintiff is entitled for suit claim as prayed for?
2) To what relief?
Additional issue was settled on 04.11.2015 as follows:
Whether this Court has no territorial jurisdiction to entertain the suit?
5)The plaintiff in order to prove his case, examined himself as P.W1.
The suit promissory notes dated 17.9.2010 for Rs.5,00,000/,
Rs.4,00,000/ and for Rs.4,00,000/ were marked as Exs.A1 to A3 respectively. It is pertinent to note down that in the plaint, it was averred that the defendant executed all the three promissory notes on 17.09.2010. In the list of documents filed with the plaint, the date of the suit promissory notes were mentioned as 17.09.2010. In the written statement filed by the defendant, he also referred the date of the suit promissory notes as 17.09.2010. In the chiefaffidavit of the plaintiff as
P.W1 also referred the date of the suit promissory notes as 17.09.2010.
In the list of documents showing them as Exs.A1 to A3, but during the
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Dated 28022020. II ADJ Court, VJA.
evidence of P.W1, in the Court, on 21.01.2015 while marking the suit promissory notes as Exs.A1 to A3, the date was typed as 17.09.2013 instead of 17.09.2010. In the crossexamination of P.W1, the defendant referred the Exs.A1 to A3 with date as 17.09.2010. Therefore, it is clear that date in the chiefexamination was mentioned as 17.09.2013 due to type mistake on 21.01.2015 in the Court while marking the exhibits.
Hence, the same shall be considered and referred as 17.09.2010 only, and accordingly, it shall be noted in the appendix of the judgment.
6)The plaintiff filed chiefexamination affidavits of Mr.K.Vijaya
Kumar and Mr.T.Jayasankara Prasad to examine them as P.W2 and
P.W3 respectively, but they were not tendered for examination of the defendant. The court on 31.07.2018 passed docket order that “P.W1 alone present. P.Ws.2 and 3 did not turn up. There is a conditional order passed by this Court that the evidence of P.Ws.1 to 3 shall be recorded on one and the same day. But P.W1 and his counsel represented that they are unable to secure the presence of P.Ws.2 and 3 therefore, they wanted to give up the evidence of P.Ws.2 and 3. Hence, the chief examination affidavit of P.Ws.2 and 3 is eschewed.”
7) After conclusion of the plaintiff evidence, the defendant in support of his case, examined himself as D.W1, and during his evidence two documents were marked as Exs.B1 and B2 respectively. Ex.B1 is copy of letter dated 27.09.2010 addressed to Human Rights
Commission by the defendant. Ex.B2 is bunch of six postal acknowledgements of various dates by addressing letters to
Superintendent of Police, Guntur, Circle Inspector of Police, Taluq
Police Station, Tenali, Deputy Superintendent of Police, Tenali,
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Dated 28022020. II ADJ Court, VJA.
Commissioner of Police, Vijayawada, SubInspector of Police, Taluq
Police Station, Tenali and Member of Legislative Assembly, Tenali.
8)Heard arguments of the learned counsel for plaintiff, and learned counsel for defendant.
ISSUE No.1.
Whether the plaintiff is entitled for suit claim as prayed for?
ADDITIONAL ISSUE.
Whether this Court has no territorial jurisdiction to entertain the suit?
9)The contention of the plaintiff is that the defendant borrowed an amount of Rs.13,00,000/ on 17.09.2010 at Vijayawada and executed
Exs.A1 to A3 promissory notes in favour of the plaintiff. The contention of the defendant is that on 17.09.2010 he was called to Tenali Taluq
Police Station and in the police station, he was coerced by the Inspector of Police and others along with the plaintiff to sign on three promissory notes and two other documents and therefore, the defendant subscribed signatures on three promissory notes and two nonjudicial stamps in the police station at Tenali and the said promissory notes pressed into service by the plaintiff for filing the suit with false allegations for unlawful gain, and that in Exs.A1 to A3 promissory notes, the column హహహ హహహ (hall makam) was mentioned as Tenali, and it indicates that they were executed at Tenali and it supports the case of the defendant that they were forced to obtain from the defendant at
Taluq Police Station, Tenali.
10)The counsel for the plaintiff submitted arguments that the plaintiff to prove the suit promissory notes, examined himself as P.W1
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Dated 28022020. II ADJ Court, VJA.
and deposed about the execution of the promissory notes and receipt of consideration by the defendant in the presence of the attestors, and the defendant in the crossexamination of P.W1 did not elicit anything to discredit the testimony of the plaintiff before the Court, and therefore, it is proved that the defendant executed Exs.A1 to A3 promissory notes on receipt of consideration, and the case of the defendant is that he was coerced on 17.09.2010 in Police Station at Tenali by Inspector of Police,
Taluq Police Station, Tenali and others, and thereupon he executed the promissory notes, as the plaintiff gave a report against the defendant and his son about the disputes between them, and the evidence shows that the report was given by the plaintiff in the month of October and therefore, the question of coercing the defendant on 17.09.2010 in police station as alleged by the defendant will not arise, and it shows that the defendant fabricated the story to avoid his liability under the suit promissory notes, and the contention of the defendant that the plaintiff did not examine the attestors or scribe of the promissory notes to prove the execution of the promissory notes is not tenable as the defendant in his evidence admitted that he executed Exs.A1 to A3 promissory notes, and more over, the promissory note is not a compulsorily attestable document and as such, there is no need to examine the attestors or scribe to prove the execution of a promissory note as laid down by the Hon’ble High Court in Bonala Raju and
another Vs. Sarupuru Sreenivasulu reported in 2005 SCC online AP
836 = 2006 (2) ALT 202.
11)The learned counsel for plaintiff further submitted arguments that in view of the evidence of the plaintiff, the burden will shift on to the defendant to prove the story alleged by him, but the defendant
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Dated 28022020. II ADJ Court, VJA.
except producing Exs.B1 and B2 did not adduce any evidence to show that he was coerced on 17.09.2010 at Police Station, Tenali, to execute the suit promissory notes, and the defendant in the crossexamination admitted that the document executed in favour of Mr.Kanagala
Pitchaiah by the defendant has nothing to do with the suit promissory notes transactions, and the evidence of the defendant that he does not know the plaintiff, and he does not know the address of the house of the plaintiff shows that he is suppressing the truth and deposing falsely to avoid his liability and admittedly, the plaintiff and the defendant are relatives and there were financial transactions earlier between them and
Exs.B1 and B2 shows that the defendant fabricated them at a later point in time to create a story of coercion, and undue influence to avoid liability under the suit promissory notes and the column relating to hall makam in Exs.A1 to A3 promissory notes was filled as Tenali and it does not mean that the suit promissory notes were executed at Tenali, and the evidence of the plaintiff and the admissions of the defendant show that the defendant came to the house of the plaintiff at
Vijayawada and executed suit promissory notes at Vijayawada, and the column hall makam was filled as Tenali indicating that the defendant came from Tenali, and it does not mean that the promissory notes were executed at Tenali and therefore, the contention of the defendant that this Court has no territorial jurisdiction over the subject matter is not correct, and the defendant did not adduce any evidence to prove that the suit promissory notes were executed at Tenali and as such, the contention of the defendant is not correct and in view of the evidence of the plaintiff which clinchingly shows that the defendant received consideration and executed the suit promissory notes, and as the
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defendant failed to discharge the burden showing that he executed the suit promissory notes in the circumstances as pleaded by him, the suit shall be decreed.
12)The learned counsel for defendant submitted arguments that the plaintiff’s case is that the suit promissory notes are executed at the house of the plaintiff in Krishnalanka, Vijayawada, admittedly, the defendant is from Angala Kuduru village of Tenali Taluq, and none of the attestors or scribe whose signatures are found on Exs.A1 to A3 promissory notes are also not from Vijayawada, and the column hall makam in Exs.A1 to A3 promissory notes indicates that they were executed at Tenali showing that the plaintiff came down to Tenali, and the promissory notes were executed at Tenali by the defendant and as such, this Court has no territorial jurisdiction over the subject matter of the case.
13)She further submitted arguments that the plaintiff in the cross examination made several material admission regarding the plea of the defendant and Exs.B1 and B2 documents, and the plaintiff admitted that the alleged incident mentioned in the police report given by him to the police on 03.10.2010 was occurred three months back i.e., in the month of July at the house of the defendant in Angala Kuduru village and if it is true, the question of plaintiff advancing money to the defendant in September 2010 will not arise at all, and it shows that the plaintiff suppressed the truth for the circumstances in which the defendant was made to execute the suit promissory notes, and the admission of the plaintiff about the execution of the document by the defendant on Rs.100/ nonjudicial stamp paper in favour of
Mr.K.Pitchaiah, which was also scribed by Mr.T.Jayasankar Prasad,
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Dated 28022020. II ADJ Court, VJA.
and attested by Mr.M.Vijaya Kumar on 17.09.2010 corroborates the case of the defendant and probablise the plea of the defendant that the suit promissory notes as well as other documents mentioned by the defendant were brought into existence in Tenali Taluq Police Station on 17.09.2010 at the instance of the plaintiff, Inspector of Police and others in the police station, and the admissions of the plaintiff about passing of consideration under Exs.A1 to A3 promissory notes, and the mode of securing money by the plaintiff to pay the consideration were not proved by the plaintiff, and on the other hand, his evidence in the crossexamination about the said aspects show that no consideration was passed under Exs.A1 to A3 promissory notes and the evidence of the plaintiff in the crossexamination supports the case of the defendant that due to financial disputes between the plaintiff and the defendant, the plaintiff presented a report to police in Taluq Police
Station, Tenali on 17.09.2010 and then Circle Inspector of Police, Taluq
Police Station, Tenali brought the defendant and his son to the Police
Station and where the plaintiff and his men with the assistance of the police coerced the defendant to execute three promissory notes which were now pressed into service as Exs.A1 to A3, and at that time they also made the defendant to execute two documents on Rs.100/ non judicial stamp papers in favour of Mr.K.Pitchaiah, which were also scribed by Mr.T.Jayasankara Prasad and therefore, the defendant discharged his burden, and plaintiff failed to prove his case as alleged in the plaint, and as such, the suit shall be dismissed.
14)In the light of above rival contentions, the crux of the dispute is whether the defendant executed Exs.A1 to A3 promissory notes at
Vijayawada as contended by the plaintiff or whether Exs.A1 to A3
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Dated 28022020. II ADJ Court, VJA.
promissory notes were signed by the defendant in police station at
Tenali as contended by the defendant. Therefore, to decide this aspect, evidence placed by the plaintiff as well as the defendant has to be appreciated with respect to the execution of the promissory notes, and passing of consideration also while considering the place of execution for arriving at a proper and just conclusion. Hence, to avoid conflict of findings and repetition of discussion, I am of the considered opinion that issue No.1 and additional issue shall be considered together and accordingly, they are taken up together for consideration.
15)Before considering the rival contentions, and appreciating the evidence placed before the Court, it is relevant and necessary to refer the judgment of Hon’ble Supreme Court in Bharat Barrel & Drum
Manufacturing Company Vs. Amin Chand Payrelal reported in AIR
1999 SC 1008. The Hon’ble Supreme Court has laid down principles of presumption in a case of promissory note. The Hon’ble Supreme Court held in para 12 that “Once the court upon taking into consideration disbelieves the stories put forth by the both the plaintiff and defendant in their pleadings, the question of decreeing the plaintiff's suit by continuing the said presumption does not arise inasmuch as once a finding is arrived at that contrary has been proved and thus the presumption raised under Section 118 (a) or Section 114 of the
Evidence Act stands rebutted, the presumptive evidence being no longer in existence cannot be revived back to life. The presumption, thus, when rebutted, the defendant discharges the burden of proof and in that view of the matter the court will have no other option but to hold that the plaintiff's suit cannot be decreed as the legal burden is always upon him which never shifts."
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16.In the case on hand, the plaintiff contended that the defendant borrowed an amount of Rs.13,00,000/ from the plaintiff on 17.09.2010 at Vijayawada and executed three promissory notes for Rs.5,00,000/ (Ex.A1), for Rs.4,00,000/ (Ex.A2) and for Rs.4,00,000/ (Ex.A3) respectively, agreeing to repay the debt amount with interest at 12% p.a., but subsequently inspite of request of the plaintiff, he did not discharge the amount due under Exs.A1 to A3 promissory notes and therefore, the plaintiff filed the suit.
17.The defendant contention is that the plaintiff and the defendant are having some financial and family disputes and therefore, the plaintiff to have a wrongful gain, foisted a false case against the defendant and his family members in Taluq Police Station, Tenali and influenced the police with his political influence, and then the Circle
Inspector of Police, Tenali Taluq Police Station called the defendant and his son to the police station on 17.09.2010, and there the plaintiff and his daughter were present and one advocate along with persons by name Mr.C.Jayasankara Prasad, one Mr.Kanagala Pitchaiah of Angala
Kuduru Village were also present, and then the Circle Inspector of
Police threatened the defendant with dire consequences to settle the disputes with the plaintiff and coerced him to sign and execute three promissory notes for Rs.5,00,000/, for Rs.4,00,000/ and for
Rs.4,00,000/ respectively in favour of the plaintiff, as if the defendant borrowed amounts under the suit promissory notes and also asked the defendant to sign on two nonjudicial stamps and among two, one was used for preparation of surety bond for the promissory notes in the name of Mr.K.Pitchaiah and other was used for preparing a sale agreement in favour of Mr.K.Pitchaiah and the scribe of all the
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Dated 28022020. II ADJ Court, VJA.
documents is none other than Mr.C.Jayasankara Prasad and one of the attestors of all the documents is Mr.K.Vijaya Kumar and one
G.Gopichand who also came to the police station attested the surety bond and the Inspector of Police forced the son of the defendant also to sign as an attestor on the sale agreement, and at that time defendant was provided with photo copies of all the said documents, and the
Circle Inspector of Police threatened the defendant to settle the disputes by paying amount to the plaintiff in one month or suits will be filed against the defendant and his family members apart from criminal case and also threatened the defendant not to initiate any action against the transaction took place in the police station and in the said circumstances, the defendant was forced to sign on three promissory notes apart from two nonjudicial stamps as directed by the Inspector of
Police, plaintiff and his men in the police station and therefore, the suit promissory notes are executed and that the three promissory notes signed by the defendant in the police station not supported by any consideration, and later the defendant made representations to Human
Rights Commission, Hyderabad and others but invain and subsequently, the plaintiff was coming to know that the defendant sent representations to Human Rights Commission and others, lodged a report with Taluq Police Station, Tenali as if the defendant and his son assaulted the plaintiff and his daughter and police registered a case and filed report in C.C.211/2011 on the file of II Addl.Munsif Magistrate’s
Court, Tenali and Hon’ble High Court stayed the proceedings in the said case.
18.Therefore, the existence of consideration mentioned in Exs.A1 to
A3 promissory notes was denied by the defendant with reference to
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circumstances which according to him showed the nonexistence of said consideration. The defendant contended that he executed three promissory notes due to coercion and undue influence of the police and others in Taluq Police Station, Tenali on 17.09.2010 without any consideration.
19.The plaintiff as P.W1 in the chiefexamination affidavit reproduced the plaint averments and further stated that the averments in the written statements are not true and correct, and they were invented for the purpose of filing the written statement. The defendant crossexamined the plaintiff at length regarding various circumstances pleaded by him in the written statement.
20.The plaintiff when he was asked about his capacity to advance amount covered by the suit promissory notes, deposed that previously he was doing finance business and travel business and on the date of suit transaction, he owns Ac.400 of land and five cars, and he can submit documentary proof about the same and at present, he does not have any agricultural land, and he does not remember to whom he sold the agricultural land, and he cannot say the date on which he sold the agricultural land. He admitted that he has not submitted any documentary evidence about owning of five cars, and he denied the suggestion of the defendant that he does not own either land or cars.
Therefore, the plaintiff though deposed that he owns Ac.400 of land and five cars etc., on the date of suit transaction, did not submit any documents about his properties.
21.The plaintiff when he was questioned about payment of
Rs.13,00,000/ on the date of promissory notes, deposed that “a few
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days after 03.07.2010 defendant called me over phone and requested me for further loan of Rs.20,00,000/. The defendant further stated that including the old debts, he will give away Ac.030 cents of land at
Angala Kuduru village towards the debt. One Krishna Bhaskar, who is the brotherinlaw of the defendant and our relative also asked me to lend money. Because I was not having Rs.20,00,000/ and because I was having only Rs.13,00,000/, I come forward to lend Rs.13,00,000/.
I brought Rs.13,00,000/ from the bank. I brought the same from SBH,
Andhra Bank Branch, Swarna Palace and some other bank. I do not remember the name of the said bank. At present I cannot say as to how much amount was withdrawn from each bank. Some amount was brought from Smt.P.Padmaja my own sister and some amount from
V.Ahalya, cousin. I cannot say as to how much amount was brought from Padmaja and Ahalya and on what day I brought the amount. It is not true to say that I did not withdraw money from the bank nor I borrowed money from Padmaja and Ahalya. I have not submitted any documentary proof to show that I withdraw amount from different banks.”
22.The above admissions of the plaintiff show that he wants to say that the amount of consideration covered by Exs.A1 to A3 promissory notes was secured by him by withdrawing money from banks and taking some money from his relatives by name Padmaja and Ahalya.
The contention of the defendant is that Exs.A1 to A3 promissory notes were not supported by consideration, and they were executed in the circumstances stated by the defendant in the police station on 17.09.2010.
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23.Therefore, the plaintiff did not place any evidence about his capacity i.e., financial status to advance huge amount of
Rs.13,00,000/as on the date of suit promissory notes. He also did not place any evidence before the Court to show that he was having money in the bank, and that he has withdrawn the same from the banks as deposed by him, and also that he has taken some amount from his relatives as stated by him.
24.The plaintiff in the crossexamination deposed that as already stated a few days later on 03.07.2010 the defendant called him over phone and requested him for Rs.20,00,000/. At this juncture, it is pertinent to note down that the plaintiff in the crossexamination further deposed that there are visiting terms in between him and the defendant, and that the defendant is his distant relative, and that there were no disputes prior to 2010 between his family and the family of the defendant, and that he lent money on few occasions to the defendant and his family members prior to 2010. So, as per admissions of the plaintiff, there were financial transactions between the plaintiff and the defendant even prior to the year 2010.
25.The plaintiff further admitted that he gave a complaint against the defendant and his family members in Cr.No.169/2010 before SHO,
Taluq Police Station, Tenali and that in the said crime, charge sheet was filed and numbered as C.C.211/2011 on the file of II
Addl.Judl.Magistrate of I Class, Tenali and that the said case is pending. The plaintiff was confronted with certified copy of the complaint in the said criminal case, the plaintiff admitted that the complaint is in his own hand writing and in the complaint he has mentioned that the defendant borrowed a sum of Rs.1,90,000/ on
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08.03.2008, Rs.96,000/ on 17.08.2008, Rs.2,00,000/ on 10.06.2008,
Rs.1,50,000/ on 16.06.2008 and Rs.1,25,000/ on 05.07.2008. So, this admission of the plaintiff shows that there were financial transactions between the plaintiff and the defendant in the year 2008 to a tune of Rs.7,61,000/.
26.The plaintiff further admitted that in the complaint, he has mentioned that in connection with the above transactions, the defendant executed five promissory notes, and that the plaintiff and his daughter approached the defendant at Angala Kuduru Village, and that the defendant teared the promissory notes on that day in his presence, and that the defendant called the plaintiff to the house of defendant on the pretext of repaying the amount, and at that time the plaintiff did not give any complaint against the defendant, and his family members, and he gave complaint three months after the said incident. So, as per admission of the plaintiff as mentioned by him in the complaint in
C.C.211/2011, it is clear that there were financial transactions between the plaintiff and the defendant and in that connection, as per version of the plaintiff, the plaintiff and his daughter went to the house of the defendant in July 2010 i.e., three months prior to the date of complaint as complaint was presented on 03.10.2010, and at that time some incident was occurred between them, and in that connection, the plaintiff gave report to the police on 03.10.2010.
27.It is pertinent to note down that the suit promissory notes are
dated 17.09.2010, that means they are after the incident dated
03.07.2010 alleged to had been occurred at the house of the defendant in Angala Kuduru Village as mentioned in the complaint filed by the plaintiff in C.C.211/2011. It is pertinent to note down that the learned
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counsel for defendant vehemently argued that when there are serious disputes between the defendant and the plaintiff since 03.07.2010, and when the plaintiff is alleging that the defendant and his son beat the plaintiff and his daughter on 03.07.2010, and torn away the earlier promissory notes, the question of plaintiff advancing further sum of
Rs.13,00,000/ to the defendant on 17.09.2010 is unbelievable, and against the human conduct.
28.The defendant crossexamined the plaintiff on this aspect. The plaintiff deposed that there are visiting terms between him and the defendant even after 03.07.2010, but he admitted that the defendant not invited him to marriage of his son, and that except on the occasion on borrowing money, the defendant did not visit his house at any time after 03.07.2010. This shows that the relation between the plaintiff and the defendant were very much strained after 03.07.2010. But for the reasons best known to the plaintiff, he deposed that the defendant visited the house of plaintiff for the purpose of borrowing money on 17.09.2010 inspite of earlier incident occurred on 03.07.2010. I already mentioned the testimony of the plaintiff in the cross examination, wherein the plaintiff deposed that few days after 03.07.2010, the defendant called him over phone and requested him for further loan of Rs.20,00,000/ and then he arranged an amount of
Rs.13,00,000/ under Exs.A1 to A3 on 17.09.2010. This version can not be believable if incident dated 03.07.2010 stated by the plaintiff is true.
29.The plaintiff as stated above admitted that the defendant and his son borrowed nearly a sum of Rs.7,61,000/ from the plaintiff in the year 2008, and executed five promissory notes and the defendant did
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not discharge the said amount and one day on 03.07.2010 defendant called the plaintiff to his house on the pretext of repaying the debt amount and the plaintiff and his daughter went to his house and the defendant tored the promissory note and when the plaintiff and his daughter tried to prevent the defendant from tearing promissory notes, the defendant and his son beat the plaintiff and plaintiff’s daughter on that day. So, if that is true, the relations between both parties must be strained very much, and an ordinary prudent man having already advanced around Rs.7,60,000/ amount to a person like defendant, and when that amount is not repaid even after two years, and when the defendant made attempt to tear the promissory notes and beat the plaintiff and his daughter, I am of the considered opinion that an ordinary prudent man will never lent further amount to the defendant that to a huge amount of Rs.13,00,000/. The plaintiff did not explain any extra ordinary circumstances under which he advanced further sum of Rs.13,00,000/ to the defendant after 03.07.2010, inspite of incident on 03.07.2010, and though the defendant did not discharge the earlier debts to a tune of Rs.7,61,000/ borrowed in the year 2008.
30.The case of the defendant is that on 17.09.2010 he was called to police station and there police, plaintiff and his men coerced the defendant to execute three promissory notes and two other documents in favour of Mr.K.Pitchaiah. The plaintiff in the crossexamination deposed that in C.C.211/2011 he examined Mr.K.Pitchaiah as a witness and that Mr.K.Pitchaiah acted as an elder to settle the disputes between the plaintiff and the defendant and a written transaction took place between the plaintiff and the defendant in the presence of
Mr.K.Pitchaiah and that the document was scribed by
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Mr.C.Jayasankara Prasad. The plaintiff was confronted with photo copy of Ex.A1 and plaintiff admitted that the scribe of the promissory note and scribe of the photo copy is Mr.C.Jayasankara Prasad, after some time plaintiff resile from his version and stated that he does not know whether second document bears the signature of Mr.C.Jayasankara
Prasad, but promissory note bears the signature of Mr.C.Jayasankara
Prasad. It is pertinent to note down that the photo copy confronted to the plaintiff is the photo copy of Ex.A1 said to be provided to the defendant at police station on 17.09.2010 which does not bear the signature of the second attestor. It is the case of the defendant that the plaintiff obtained signature of the second attestor at a later point in time and filed the suit.
31.The plaintiff in the crossexamination deposed that he does not know whether there is reference of suit promissory notes in the document executed on 17.09.2010, and he does not know who instructed Mr.C.Jayasankara Prasad to scribe the agreement, and he does not remember to who are the witnesses to the agreement. The plaintiff admitted that in the alleged promissory notes, in the column హహహ హహహ (hall makam), it is mentioned as Tenali. In the cross examination, plaintiff deposed that Mr.K.Vijaya Kumar and
Mr.C.Jayasankara Prasad are not known to him. It is pertinent to note down that they are from the place of the defendant, and it is the case of the defendant that they are supporters of the plaintiff. The plaintiff in the crossexamination of the defendant admitted that one Tupakula
Murali Krishna was Circle Inspector of Police, Tenali Taluq Police
Station, and that the plaintiff also admitted that the signatures of the defendant were obtained on Rs.100/ nonjudicial stamp papers
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standing in the name of Mr.K.Pitchaiah, and the plaintiff questioned him by showing that signatures were obtained in connection with previous transactions which were referred in the criminal complaint. It is pertinent to note down that the sale agreement was obtained on non judicial stamp dated 17.09.2010 as per the case of the defendant. The plaintiff deposed that he does not remember who dictated terms for writing a document on Rs.100/ stamp paper. So, the admission of the plaintiff shows that some document was also prepared on Rs.100/ nonjudicial stamp in the name of Mr.K.Pitchaiah relating to the suit promissory notes, but the plaintiff made an attempt to say that it relates to previous transactions, which is not believable.
32.The learned counsel for plaintiff vehemently argued that the complaint was given by the plaintiff on 03.10.2010, and therefore, the question of calling the defendant to police station on 17.09.2010 does not arise and it is a concocted story. It is pertinent to note down that even as per admissions of the plaintiff, in the complaint filed by the plaintiff, it was alleged that the plaintiff and his daughter went to the house of the defendant on 03.07.2010, and at that time the defendant made attempt to tear the earlier promissory notes, and that when the plaintiff and his daughter tried to prevent the defendant, the defendant and his son beat the plaintiff and his daughter, and later after three months i.e., on 03.10.2010 the plaintiff presented report to Taluq Police
Station, Tenali. It is pertinent to note down that the contention of the defendant is that the plaintiff presented report to the police on 17.09.2010, and at that time he was called to police station and these documents were executed in the police station due to coercion of the police and when the defendant reported the matter to Human Rights
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Commission and others, the plaintiff got registered the case on 03.10.2010 to counter blast the representations presented by the defendant.
33.The defendant in support of his case examined as D.W1. In the chiefexamination affidavit he reproduced the written statement averments and two documents were marked on his behalf i.e., copy of representation dated 27.09.2010 said to have been sent by him to the
Human Rights Commission and others, wherein he reiterated the same story as mentioned in the written statement. Ex.B2 is bunch of six postal acknowledgements dated 10.06.2011. The plaintiff cross examined the defendant at length. The defendant in the cross examination admitted that his wife is Smt.Malleswari and second attestor of the promissory notes Mr.Movva Krishna Bhaskar Rao is brother of his wife. I already stated above, the plaintiff also admitted that they are distant relatives. So, it is very clear that the plaintiff and the defendant are relatives. I already stated that the plaintiff in his evidence admitted that there were financial transactions between the plaintiff and the defendant in the year 2008 covered by the promissory notes to an extent of Rs.7,61,000/, and in that connection as deposed by plaintiff, defendant beat him and his daughter on 03.07.2010 at the house of the defendant as alleged in the complaint.
34.Therefore, the contention of the defendant that he has financial and family disputes with the plaintiff prior to 2010 appears to be more probable. The defendant in the crossexamination made an attempt to say that as if he does not know where the plaintiff stays at
Krishnalanka, Vijayawada. It appears that the defendant for the reasons best known to him deposed that he does not know where the
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plaintiff stays at Krishnalanka, Vijayawada, while admitting that he used to visit the house of the plaintiff in connection with business, and he borrowed money from the plaintiff in connection with the business as already stated above in the year 2008. The defendant in the cross examination of the plaintiff denied the case of the plaintiff about transactions in the year 2008 and the alleged incident dated 03.07.2010. He also denied the suggestions of the plaintiff that on 17.09.2010 the defendant along with attestors and scribe came to the house of the plaintiff and borrowed the amount covered by the suit promissory notes. The plaintiff in the crossexamination of the defendant did not elicit anything probablising the case of the plaintiff that on 17.09.2010 the defendant along with attestor and scribe came to the house of the plaintiff at Vijayawada and executed the suit promissory notes, except putting suggestions, which were denied by the defendant. As already stated above, the plaintiff not produced any evidence showing that he has withdrawn money from the banks and borrowed money from his relatives to probablise his plea that the suit amount of Rs.13,00,000/ was with him on 17.09.2010, and it was advanced to the defendant under Exs.A1 to A3 promissory notes. The plaintiff in the crossexamination of the defendant made attempt to say that the plaintiff presented report to the police on 04.10.2010 and therefore, the question of calling the defendant to the police station on 17.09.2010 will not arise. These suggestions were denied by the defendant as false. The defendant in the crossexamination deposed that the signatures on Exs.A1 to A3 promissory notes appears to be of him, but he stated that those promissory notes were executed by him as signature of the second attestor was not there when he signed on the
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promissory notes. I already stated above that the plaintiff in his cross examination when he was confronted that the photo copy of Ex.A1 promissory note, initially he admitted that it was scribed by
Mr.C.Jayasankara Prasad, but after some thoughts, he resiled from his statement but admitted that it contained signatures of
Mr.C.Jayasankara Prasad.
35.Admittedly, Exs.A1 to A3 promissory notes contain a column as హహహ హహహ (hall makam). If the promissory notes are executed at
Krishnalanka in the house of the plaintiff, it should indicate as
Vijayawada stating that the defendant temporarily came down to
Vijayawada from his village Angala Kuduru, and executed the promissory notes, but surprisingly, it is mentioned as Tenali. It is not mentioned either as Vijayawada, the place of the plaintiff or Angala
Kuduru village the village of the defendant. It is the contention of the defendant that the promissory notes were scribed in police station at
Tenali, therefore, it was mentioned as Tenali. This contention of the defendant is more probablising in view of the above facts and circumstances, and admission of the plaintiff in the crossexamination mentioned in the above paras of the judgment.
36.Therefore, the above facts and circumstances probable the case of the defendant that there were financial transactions between the plaintiff and the defendant in the year 2008 and in that connection, some disputes took place between them in July 2010, and therefore, the matter went to Taluq Police Station at Tenali, and as a result, the suit promissory notes and some other documents came into existence for the reasons best known to the plaintiff, and as alleged by the defendant, and then the defendant made representation to the Human Rights
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Commission and others, and then the plaintiff might have come with a report, and as a result, the plaintiff filed suit using the promissory notes obtained at the police station. Hence, the defendant is able to discharge the burden placed upon him showing that the suit promissory notes were not supported by consideration, and that they were executed in the circumstances alleged by him.
37.Therefore, now the burden shifts upon the plaintiff. The plaintiff as already stated by me did not adduce any evidence to prove that the suit promissory notes were executed by the defendant at the house of the plaintiff on 17.09.2010, and they were supported by consideration as alleged by the plaintiff. In those circumstances, it is the duty of the plaintiff to produce evidence to prove that Ex.A1 to A3 were supported by consideration. Therefore, the evidence of the persons present at the time of passing of consideration will help the Court to consider the case of the plaintiff. Hence, the decision relied upon by the learned counsel for the plaintiff has no application to the facts of the case on hand, as in the case on hand, the defendant discharged the burden placed upon him, and now it is the burden of the plaintiff to prove passing of consideration under the suit promissory notes, but the plaintiff failed to discharge the same by adducing evidence. The evidence adduced by the plaintiff is insufficient to prove his case of consideration under Exs.A1 to A3 promissory notes. Hence, he is not entitled to the suit amount covered by the suit promissory notes under Exs.A1 to A3. Accordingly, issue No,1 is answered.
38.It is very clear from the above facts and circumstances that the suit promissory notes were not executed at Vijayawada, and the evidence on record shows that they were executed at Tenali, in the
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circumstances pleaded by the defendant, and therefore, the column హహహహ హహహ (hall makam) in Exs.A1 to A3 promissory notes was mentioned as
Tenali by the scribe, as scribe or the plaintiff might not have visualized that the plaintiff will be constrained to file suits at a later stage, and therefore, it shall be mentioned as Vijayawada instead of Tenali. Hence, the scribe might have filled it as Tenali, as they were scribed by him at
Tenali. Therefore, as rightly contended by the learned counsel for the defendant, this Court has no territorial jurisdiction to try the subject matter covered by Exs.A1 to A3 promissory notes, and as such, the plaint shall be returned for presentation in proper Court as per Order
VII Rule 10 of the Code of Civil Procedure 1908, though issue No.1 is answered against the plaintiff. Accordingly, the additional issue is answered.
39.Therefore, issue No.1 is answered against the plaintiff. Additional issue is answered in favour of the defendant, and against the plaintiff that this Court has no territorial jurisdiction over the subject matter covered by Exs.A1 to A3 promissory notes.
ISSUE No.2: To what relief?
40.In view of the finding on additional issue, irrespective of the finding on issue No.1, the plaint shall be returned under Order VII Rule 10 of the Code of Civil Procedure, 1908 for presentation in proper
Court.
41. In the result, the plaint is returned for presentation in proper
Court. Office is directed to return the plaint as per Order VII Rule 10 (2) of the Code of Civil Procedure, 1908. In the circumstances of the case, there shall be no order as to costs.
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Dictated to the GradeII Stenographer of this Court, transcribed
by him, corrected and pronounced by me in open court, on this the 28th day of February 2020.
II ADDL. DISTRICT JUDGE,
VIJAYAWADA.
Appendix of Evidence
Witnesses examined on behalf of the
Plaintiff:
P.W.1 G.Siva Prasad (Plaintiff).
P.W.2 K.Vijaya Kumar (Eschewed).
P.W.3 T.Jayasankara Prasad (Eschewed).
Defendant:
D.W.1 B.Mallikharjuna Rao (Defendant).
Documents marked on behalf of the
Plaintiff:
Ex.A1 17.09.2010 Suit promissory note executed by the defendant in favour of the plaintiff for Rs.5,00,000/.
Ex.A2 17.09.2010 Suit promissory note executed by the defendant in favour of the plaintiff for Rs.4,00,000/.
Ex.A3 17.09.2010 Suit promissory note executed by the defendant in favour of the plaintiff for Rs.4,00,000/.
Defendant:
Ex.B1–Representation sent by defendant to the Human Rights Commission.
Ex.B2–Bunch of six postal acknowledgements.
II A.D.J., VJA.