Sri G.rama Krishna

1

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

In the Court of Principal District Judge,

Krishna at Machilipatnam

Present: - Sri Guduri Rama Krishna, B.Sc., B.L.,

Principal District Judge,

Krishna at Machilipatnam

Friday, this the 17th day of December, 2021

Appeal Suit No.115 of 2015

Between:

Krovi Venkateswara Rao, S/o.Nageswara Rao, Hindu, Aged 56 years, Cultivation, R/o. Neelipudi, Kruthivennu Mandal, Krishna District. … Appellant/Defendant

A n d

Puppala Narasimha Rao, S/o. Venkata Ramaiah, Hindu, Aged 58 years, Cultivation, R/o. Neelipudi, Kruthivennu Mandal, Krishna District. … Respondent/Plaintiff

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN O.S.NO.253 OF 2009 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, MACHILIPATNAM ON 09.09.2015, MADE IN:

Puppala Narasimha Rao, S/o. Venkata Ramaiah, Hindu, Aged 58 years, Cultivation, R/o. Neelipudi, Kruthivennu Mandal, Krishna District. … Plaintiff

A n d

Krovi Venkateswara Rao, S/o.Nageswara Rao, Hindu, Aged 56 years, Cultivation, R/o. Neelipudi, Kruthivennu Mandal, Krishna District.

… Defendant

This appeal is coming before me on 03.12.2021 for final hearing in the presence of Sri S.Balaji Rao, Advocate for the Appellant/ Defendant and of Sri V.V.Varada Rajulu, Advocate for the Respondent/Plaintiff and the matter is having stood over for consideration till this day and upon perusing the material papers on record, this Court delivered the following:

J U D G M E N T

The challenge under this Appeal is Judgment and Decree passed in O.S.No.253 of 2009, dt.09.09.2015 on the file of Principal Senior

Civil Judge’s Court, Machilipatnam.

Page No.1 of 14 2

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

2. The appellant herein is the defendant and respondent herein is the plaintiff in the above suit. Therefore, to avoid confusion, this Court is going to refer the parties as they were arrayed before the

Trial Court in O.S.No.253 of 2009.

3. Since this Court being the First Appellate Court is also a fact finding Court, invariably to decide this appeal, this Court must rely on the pleadings and evidence let in by both parties.

4. The case of the plaintiff is that the plaintiff and defendant are residents of Neelipudi village of Kruthivennu Mandal and they are interrelated. On 12.12.2006, the defendant requested the plaintiff for hand loan of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the purpose of his family expenses. The plaintiff being relative of the defendant, believed his words and lent an amount of Rs.1,50,000/- to the defendant. The said transaction occurred in the presence of

Mutyalapalli Viswanadham and Prathi Sesha Rao. As a proof for the said transaction of borrowing of money, the defendant on the same day executed a hand letter in favour of plaintiff by incorporating the loan transaction.

4.1. The defendant promised to repay the loan amount within a short span of time, but failed to keep up his promise even though the plaintiff made several demands. As the defendant has been postponing the repayment of loan amount, the plaintiff vexed with the attitude of the defendant, got issued a registered legal notice dt.15.11.2007 to the defendant, demanding him to repay the debt amount for an amount of Rs.1,50,000/-. After receiving the legal notice, the defendant made a proposal for compromise and dragon the matter.

Page No.2 of 14 3

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

Hence, the plaintiff filed the suit for recovery of the debt amount from the defendant.

5. The defendant in his written statement denied the material averments of the plaint besides contending that the plaintiff is his

Nephew. He had no necessity to borrow any amount from anybody. He and his brother are cultivating their lands jointly. Whenever necessity arose, he borrowed crop loan and gold loan from the bank only.

5.1. The plaintiff is a money lender, used to lend loans to the villagers. Due to his close relationship with the plaintiff, if anybody approached him to introduce anybody to lend loan, he introduce two or three persons now and then and the plaintiff lent money to them and those persons used to discharge the loans to the plaintiff. While so, one Puppala Ranga Rao and Baditha Sambasiva Rao borrowed amounts from the plaintiff and not discharged the amounts in time.

So, the plaintiff informed the same to the defendant, who made enquiries with them and they promised to discharge their loans, even by selling their lands and requested time, in turn, the defendant informed the same to the plaintiff.

5.2. Not being satisfied with their reply, the plaintiff informed the defendant that he filed a suit against the said Sambasiva Rao and he asked the defendant to give evidence in that suit and so saying, the plaintiff obtained the signatures of defendant on two blank white papers. Subsequently, the said Sambasiva Rao and plaintiff compromised the suit and the defendant did not give his evidence in the said suit.

5.3. Puppala Ranga Rao suffered financially, could not discharge the loan of plaintiff and others. He got Ac.1.24 ½ cents of

Page No.3 of 14 4

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

land. Before village elders said Puppala Ranga Rao agreed to give

Ac.0.12 cents of land to the plaintiff and his another creditors in lieu of the loan amount. He divided his land and handed over their respective extents to the creditors. But, the plaintiff not agreed to take the

Ac.0.12 cents of land of Ranga Rao on the pretext that the value of said land is not sufficient to discharge the loan due. So, the extent remained as it is since 2006.

5.4. The plaintiff used to insist the defendant to pay the loan of said Ranga Rao, as he introduced him to the plaintiff. When the defendant advised the plaintiff to take Ac.0.12 cents of land allotted to him, but the plaintiff refused to do so and threaten the defendant to see how he could not realise the amount. Since then, both of them are not on talking terms. The plaintiff issued a notice to the defendant and the same is informed to the village elders and some others including

Subrahmanyam, the husband of village President and Ex-vice

President Subba Rao. They promised to send for the plaintiff and informed him that he need not pay the amount under notice as he did not borrow.

5.5. The defendant came to know that the plaintiff not come to the elders. Having received the suit notice and seeing the suit document, he shocked and believed that the plaintiff himself have fabricated the suit document taking advantage of his signatures on blank white papers with the help of attestors and scribe. He never borrowed the suit amount from the plaintiff and executed the suit document, and it is fabricated document. The attestor by name

Viswanadham is a Barber by profession and another attestor is the father-in-law of the plaintiff. He does not know the scribe. The suit is

Page No.4 of 14 5

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

not maintainable and there is no cause of action to file the suit. The suit is barred by limitation and finally prayed the court to dismiss the suit.

6. Based on the above pleadings, the Trial Court framed the following issues:

(1). Whether the borrowing of Rs.1,50,000/- and execution of hand latter by the defendant is true?

(2). Whether the plaintiff fraudulently obtained the signatures of the defendant on blank papers and under the guise of using as evidence in the suit against Baditha Sambasiva Rao?

(3). Whether the plaintiff fabricated and forged the suit hand latter as Puppala Ranga Rao and Baditha Sambasiva Rao failed to discharge loans borrowed from the plaintiff?

(4). Whether the defendant is liable for the suit amount?

(5). Whether the plaintiff is entitled for a decree for the suit amount as prayed for?

7. In order to prove his case, the plaintiff – Puppala

Narasimha Rao got examined himself as P.W.1, got marked Exs.A.1 to

A.4; and Voora Venkateswara Rao, the scribe of promissory note was examined as P.W.2 and his evidence was eschewed. On behalf of the defendant [Krovi Venkateswara Rao], he was examined as D.W.1 and

Puppala Pandu Ranga Rao was examined as D.W.2. On hearing both sides and on considering oral and documentary evidence, the learned

Principal Senior Civil Judge, Machilipatnam decreed the suit. Aggrieved

by the same, the present appeal is filed.

8. It is submitted by the learned counsel for appellant/ defendant that Ex.A.1 hand letter is not admissible in evidence and the admissibility or otherwise of the document can be decided at the time of Judgment. But the Trial Court made an observation at Para No.13 of the Judgment that once the document is admitted, it cannot be

Page No.5 of 14 6

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

questioned is not correct. The evidence of P.W.1 is not sufficient to come to a conclusion about the contents covered under Ex.A.1.

9. As per the evidence of D.W.1, he never admitted regarding the signature, but the Trial Court misread the evidence and stated that it was admitted by the defendant.

10. Now the points for consideration are:

(1). Whether the defendant borrowed an amount of Rs.1,50,000/- from the plaintiff on 12.02.2006 and executed a hand letter on the same day for the proof of transaction of borrowing money?

(2). Whether the defendant put his signatures on blank white paper under the guise of giving evidence in the suit filed by the plaintiff against Samba Siva Rao and the plaintiff fabricated the hand letter, as Puppala Ranga Rao failed to repay the loan amount to the plaintiff?

(3). Whether the plaintiff is entitled to recover the amount of Rs.1,50,000/- from the defendant as prayed for?

(4). To what relief?

11. Heard both sides.

Point Nos.(1) & (2):

Since these two points are interconnected with each other, this

Court intended to answer them together.

12. The plaintiff - Puppala Narasimha Rao, who was examined as P.W.1, reiterated the plaint averments in his evidence affidavit.

According to him on 12.02.2006, the defendant borrowed an amount of Rs.1,50,000/- in the presence of Mutyalapalli Viswanadham and

Prathi Sesha Rao. As a proof of said transaction of borrowing of money, the defendant on the same day executed Ex.A.1 hand letter in his favour by incorporating the loan transaction. Prathi Sesha Rao and

Mutyalapalli Viswanadham are the attestors and one V.Venkateswara

Rao is the scribe of the hand letter/Ex.A.1.

Page No.6 of 14 7

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

13. In their presence, the plaintiff passed the consideration, and only after receiving the consideration of Rs.1,50,000/- the defendant signed on Ex.A.1 hand letter in the presence of attestors and scribe. Later, the attestors and scribe were signed on it.

14. In spite of demands made by the plaintiff, as the defendant failed to repay the debt and not pay back the loan amount, the plaintiff got issued legal notice dated 15.11.2007 under Ex.A.2 to the defendant, demanding the defendant to pay back the loan amount.

Ex.A.3 is the Postal Receipt to show that the legal notice is despatched on 15.11.2007; Ex.A.4 is the Postal Acknowledgment, where under the defendant received Ex.A.2 legal notice. As the defendant dragon the matter one pretext or the other, the plaintiff filed the suit. In cross examination of P.W.1, he stated that as per the dictation of the defendant the scribe written the Ex.A.1.

15. The defendant [Krovi Venkateswara Rao] who got examined as D.W.1, reiterating the averments in the written statement in his evidence in chief. The main contention of the defendant is that the plaintiff is a money lender, if persons approached the defendant to introduce anybody to lend money, he introduced two or three persons now and then. The plaintiff lent amount to them and those persons used to discharge the loans to the plaintiff. One Puppala

Ranga Rao and Baditha Sambasiva Rao borrowed loans from the plaintiff and not discharged the loans in time. So, the plaintiff informed the same to the defendant, then the defendant made enquiries with them and they promised to discharge the loan even by selling their lands and requested time. The defendant informed the same to the plaintiff, but the plaintiff not satisfied with their reply, he filed the suit

Page No.7 of 14 8

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

against Sambasiva Rao and asked the defendant to give evidence, for that purpose the plaintiff obtained signatures of defendant on two blank white papers. Subsequently, Sambasiva Rao and plaintiff compromised the suit and the defendant had not given evidence in the said suit.

16. Puppala Ranga Rao could not discharge the amount of the plaintiff. The said Ranga Rao got an extent of Ac.1.24 ½ cents of land.

Before village elders, said Ranga Rao agreed to give Ac.0.12 cents of

land to the plaintiff in view of discharge of loan. The plaintiff did not agree to take the land of Ac.0.12 cents of land of Ranga Rao on the pretext that the value of that land is not sufficient towards discharge of loan amount. So, the extent remained as it is since 2006. The plaintiff used to insist the defendant to pay the loan of Ranga Rao, since the defendant introduced the Ranga Rao to the plaintiff. He advised the plaintiff to take Ac.0.12 cents of land allotted to him, but the plaintiff refused to do so and threatened the defendant to see how he could not realise the amount. Since then, there were no taking terms between them. Then the plaintiff issued a notice to the defendant, in turn, the defendant informed the same to the village elders i.e., President and Ex-Vice President of the village. They promised to send for the plaintiff, but the plaintiff not turned up. The document Ex.A.1 is fabricated by the plaintiff by taking advantage of signatures of the defendant on blank white papers with the help of attestors and scribe.

17. First of all, it is to be seen whether the Puppala Panda

Ranga Rao borrowed any money from the plaintiff and unable to repay the same either in the plaint or his evidence in chief, the defendant not

Page No.8 of 14 9

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

stated what is the date of borrowal of money from the plaintiff by

Puppala Pandu Ranga Rao and also not stated what is the quantum of amount. Further the defendant not stated the date of placing the matter before the village elders. Those particulars are absent. Anyhow,

Puppala Pandu Ranga Rao was examined as D.W.2, who is no other than the brother-in-law of defendant. The defendant not disclosed his relationship with Puppala Pandu Ranga Rao. But in cross examination of D.W.2, it was elicited that the defendant is brother-in-law of D.W.2

Pandu Ranga Rao. According to the evidence of D.W.2, in the year 1999 he requested the defendant to arrange a loan amount of

Rs.25,000/-, then the defendant referred the matter to the plaintiff.

Then the plaintiff lent an amount of Rs.25,000/- at the rate of 3% per month per hundred. Subsequently, he paid the interest regularly and discharged an amount of Rs.20,000/- and only Rs.5,000/- outstanding debt due to the plaintiff. Later, he indebted to some others and the others placed the matter before the village elders and handed over the

Ac.1.24 ½ cents of land to the village elders, requesting them to settle his dues through the village elders. The elders settled the matter and distributed his property to his creditors. In his cross examination, he stated that he never issued any notice to the plaintiff stating that he borrowed loan amount of Rs.25,000/- and liable to pay Rs.5,000/- only.

18. First of all, there is no cogent evidence to show that really the D.W.2 - P. Pandu Ranga Rao borrowed an amount of Rs.25,000/- in the year 1999 from the plaintiff and discharged an amount of

Rs.20,000/- and due only Rs.5,000/- and also there is no acceptable evidence to show that he placed his land of Ac.1.24 ½ cents before

Page No.9 of 14 10

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

village elders towards debts due by D.W.2 including the plaintiff and the plaintiff refused to receive Ac.0.12 cents of land in view of the amount due by D.W.2 to the plaintiff. If really such thing is happened, either D.W.1 or D.W.2 must have mentioned the dates specifically.

19. It is argued by the learned counsel for plaintiff that first of all there is no base in the contention of the defendant that the plaintiff obtained the signatures of defendant on a blank white papers and converted the same as Ex.A.1 hand letter with regard to his borrowal of Rs.1,50,000/- from the plaintiff on 12.12.2006. The defendant not issued any reply to Ex.A.2 legal notice dated 15.11.2007. The defendant not gave any denial suggestion with regard to execution of

Ex.A.1 hand letter dt.12.12.2006, since the evidence of P.W.1 coupled with Ex.A.1. Non-issuance of any replay to Ex.A.1 legal notice by the defendant, though he received the legal notice are probablizing the case of plaintiff. Therefore, prayed to dismiss the appeal.

20. This court finds force in the above contention of the learned counsel for plaintiff. However, on the other hand it is contended by the learned counsel for defendant that the defendant never admitted regarding the signature on Ex.A.1. But the Trial Court misread the evidence and stated that it was admitted by the defendant which is not at all correct. The above arguments of the learned counsel defendant is absurd, because in his written statement as well as in his evidence in chief, the defendant categorically stated that the plaintiff obtained his signatures on two blank white papers and after receipt of suit summons and suit documents, he surprised and came to a conclusion that the plaintiff taking advantage of having signatures of him, fabricated the Ex.A.1. So, the above contention of defendant is

Page No.10 of 14 11

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

crystal clear that the signature on Ex.A.1 is that of him and it is also contended by the learned counsel for defendant that no opportunity was given to the counsel for defendant to raise any objection with regard to Ex.A.1 and the documents are not marked, that is also an absurd one. On the chief affidavit of P.W.1 it is clearly written by the

Trial Court that Exs.A.1 to A.4 were marked. The description of the documents Exs.A.1 to A.4 was specifically mentioned in the chief evidence affidavit of the plaintiff. Before trial itself, it is argued by the counsel for defendant that Ex.A.1 hand letter is inadmissible in evidence, since it is required a stamp duty and penalty.

21. With regard to the above contention are concerned, in Para

No.13 of the Judgment the Trial Court, it was clearly mentioned that “Ex.A.1 is a hand letter, it is neither an acknowledgment of receipt of money nor unconditional undertaking to pay money, which takes the character of promissory note”.

22. Since, the Ex.A.1 is a hand letter, dt.12.12.2006, it does not require any stamp duty. Even if the contents of Ex.A.1 hand letter suggest that the defendant received an amount of Rs.1,50,000/-.

Therefore, it is nothing but receipt, the said receipt requires stamp duty or not. Once it is admitted in evidence, it cannot be questioned with regard to its admissibility. Of course, the above observation with regard to the admissibility of the document is an error. The evidential value and admissibility of the documents must be decided by the court at the final hearing of the matter. Mere marking of documents as an exhibit will not get automatically the admissibility. However, with regard to the above contention it is submitted by the learned counsel for plaintiff that the suit is not based on Ex.A.1. But the suit is filed

Page No.11 of 14 12

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

based on the original cause of action i.e., receiving of hand loan of

Rs.1,50,000/- from the plaintiff by defendant on 12.12.2006. Ex.A.1 is only corroborative evidence with regard to proof for the transaction of borrowing of money by the defendant on the same date from the plaintiff. Therefore, the said hand letter does not require any stamp duty

23. Furthermore, the plaintiff obtained the signatures of defendant on blank white papers as under the guise of giving evidence in a suit filed against one Samba Siva Rao by the plaintiff. The said contention of the defendant is unchallenged one. If any person requesting the other to give evidence in his matter, he can make a request to that person who is known the facts of the case to give evidence or otherwise he can get the witness summon from the court.

But, there is absolutely no need to obtain signatures on a blank white paper like Ex.A.1 as contended by the defendant.

24. The defendant not give any justifiable reasons for putting a signature on a white paper. Therefore, for the reasons mentioned above, this court concludes that there are no probabilities in the contention of the defendant. The evidence of P.W.1 coupled with

Ex.A.1. So also, the circumstances that keeping himself mum by the defendantwithout giving any proper reply to Ex.A.2legal notice dated 15.11.2007 is probablizing the case of the plaintiff. If really the contentions in the Ex.A.2 legal notice dated 15.11.2007 are false, a prudent man cannot keep quite without responding to such legal notice, wherein, the defendant was demanded to pay back an amount of Rs.1,50,000/-. In addition to that, there is no evidence to show that really after receiving of the legal notice by the defendant, the matter

Page No.12 of 14 13

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

was placed before the village elders. The evidence of P.W.1 with regard to borrowal of hand loan by the defendant to a tune of

Rs.1,50,000/- from him on 12.12.2006 is supported by Ex.A.1 hand letter.

25. Though the defendant examined his brother-in-law as

D.W.2 – P. Pandu Ranga Rao, in his cross examination he admitted that he does not know the transaction between the plaintiff and defendant and also he does not know about the Ex.A.1 hand letter and the date of said hand letter, which was allegedly the defendant had executed while borrowing loan for him. The above evidence of D.W.2 showing his ignorance with regard to the transaction between the plaintiff, defendant and Ex.A.1.

26. It is submitted by the counsel for plaintiff that the defendant planted D.W.2 to support his case. The D.W.2 is no other than the brother-in-law of defendant. The non furnishing of dates and details of the alleged borrowal of the amount by the D.W.2 from the plaintiff either in the plaint or in the chief evidence affidavit of D.W.1 are probablizing the above said contention of the plaintiff is correct.

27. With the above reasons and as the evidence referred above, this court concludes that the defendant borrowed an amount of

Rs.1,50,000/- from the plaintiff on 12.12.2006, later, executed Ex.A.1 hand letter as proof of receiving amount from the plaintiff. There is no evidence to show that the defendant put his signatures on blank white papers and also failed to establish that there was any debtor and creditor relationship between D.W.2 and the plaintiff as D.W.2 failed to pay the alleged debt due by him to the plaintiff, the plaintiff taking advantage of signatures of defendant on blank white papers,

Page No.13 of 14 14

Principal District Judge,

Appeal Suit No.115 of 2015 Krishna, Machilipatnam.

Dt: 17.12.2021.

converted the same as Ex.A.1. Hence, point Nos.(1) and (2) are answered accordingly against the defendant and in favour of the plaintiff.

Point No.(3):

28. In view of the opinion of this court in point Nos.(1) and (2), this court fails to find any reason to interfere in the Judgment and

Decree passed in O.S.No.253 of 2009, dt.09.09.2015 by the learned

Principal Senior Civil Judge, Machilipatnam and the plaintiff is entitled

to receive back the amount of Rs.1,50,000/- from the defendant. This point also answered accordingly in favour of the plaintiff.

Point No.(4):

29. In the result, the Judgment and Decree passed in

O.S.No.253 of 2009, dated 09.09.2015 on the file of Principal Senior

Civil Judge’s Court, Machilipatnam is hereby CONFIRMED. The appeal

is DISMISSED with costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced

by me in open Court on this the 17 th day of December, 2021.

Principal District Judge,

Krishna, Machilipatnam.

Appendix of Evidence - No oral or documentary evidence has been adduced by either of the party before the Appellate Court –

Principal District Judge,

Krishna, Machilipatnam.

Copy to:

The Principal Senior Civil Judge’s Court, Machilipatnam.

Page No.14 of 14

1

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

In the Court of Principal District Judge,

Krishna at Machilipatnam

Present: - Sri Guduri Rama Krishna, B.Sc., B.L.,

Principal District Judge,

Krishna at Machilipatnam

Tuesday, this the 4th day of January, 2022

Appeal Suit No.11 of 2016

Between:

Parasa Venkanna, S/o. Late Veera Raghavulu, Hindu, Aged 54 years, Cultivation, R/o. Kakarlamudi Village, Pedna Mandal, Krishna District. … Appellant/Plaintiff

A n d

Parasa Lakshminarayana, S/o. Late Veera Raghavulu, Hindu, Aged 60 years, Cultivation, R/o. Kakarlamudi Village, Pedana Mandal, Krishna District. … Respondent/Defendant

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN O.S.NO.353 OF 2012 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, MACHILIPATNAM ON 03.11.2015, MADE IN:

Parasa Venkanna, S/o. Late Veera Raghavulu, Hindu, Aged 54 years, Cultivation, R/o. Kakaralamudi Village, Pedna Mandal, Krishna District.

… Plaintiff

A n d

Parasa Lakshminarayana, S/o. Late Veera Raghavulu, Hindu, Aged 60 years, Cultivation, R/o. Kakaralamudi Village, Pedana Mandal, Krishna District.

… Defendant

This appeal is coming before me on 07.12.2021 for final hearing in the presence of Sri Md.Rizwanullah, Advocate for the Appellant/ Plaintiff and of Sri S.Balaji Rao, Advocate for the Respondent/ Defendant and the matter is having stood over for consideration till this day and upon perusing the material papers on record, this Court delivered the following:

J U D G M E N T

The challenge under this Appeal is Judgment and Decree passed in O.S.No.353 of 2012, dt.03.11.2015 on the file of Additional Senior

Civil Judge’s Court, Machilipatnam.

Page No.1 of 13 2

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

2. The appellant herein is the plaintiff and respondent herein is the defendant in the above suit. Therefore, to avoid confusion, this

Court is going to refer the parties as they were arrayed before the Trial

Court in O.S.No.353 of 2012.

3. Since this Court being the First Appellate Court is also a fact finding Court, invariably to decide this appeal, this Court must rely on the pleadings and evidence let in by both parties.

4. The case of the plaintiff is that the defendant is his elder brother. On the death of their father, they along with other brother performed Peda Karma of their father. He was asked to meet the expenses and the defendant promised to pay his share of expenses.

Thereafter, all of them sat before the village elders on 11.07.2010 and after tallying of accounts it was found that the defendant was liable to pay an amount of Rs.74,200/- towards his share. For payment of the said amount, the defendant executed a demand promissory note at

Kakarlamudi Village in favour of the plaintiff, agreeing to repay the same with interest at the rate of 24% per annum to the plaintiff or his order on demand.

4.1. Thereafter, the defendant stated that the plaintiff is liable to pay an amount of Rs.3,000/- towards the share of the plaintiff for the expenses incurred by the defendant, for which, an endorsement for Rs.3,000/- was made on the reverse of the demand promissory note. As such the defendant as on 11.07.2010 was liable to pay an amount of Rs.71,200/- to the plaintiff. There is a pious obligation on the part of the defendant to pay his share of amount to the plaintiff as expenses was incurred by the plaintiff on the request of defendant at time of performing pedakarma of their father.

Page No.2 of 13 3

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

4.2. In spite of repeated demands made by the plaintiff orally as well as writing, the defendant failed to pay the amount to the plaintiff. Then the plaintiff got issued a legal notice demanding the defendant to pay the amount. The defendant received the legal notice but neither paid the amount nor issued any reply. The defendant along with his other brother filed a partition suit against the plaintiff, their mother and sisters. The joint family agricultural lands were already partitioned orally during the lifetime of their father and enjoying separately and even alienated their shares and gifted the same to their children, except the house, in which their mother has been residing. As the defendant failed to pay the amount due by him, the plaintiff filed the suit for recovery of an amount of Rs.1,11,784/-, which includes interest at the rate of 24% per annum from 11.7.2010 to 26.11.2012.

5. On the other hand, the defendant in his written statement denied the material averments in the plaint, besides contending that all the brothers performed the Pedakarma of their father together. He has bare the expenses to the extent of his share and his relatives spent the amount by collecting due shares from the plaintiff, defendant and also another brother. Therefore, the plaintiff was never asked to spend amount and the plaintiff never spent any amount on behalf of the defendant. There was no sitting at all for sort out the accounts and the defendant never executed any promissory note in favour of the plaintiff on 11.07.2010. It is only a rank forged document.

5.1. It is further contended that the defendant already filed a suit in O.S.No.319 of 2011 on the file of Additional Senior Civil Judge’s

Court, Machilipatnam for partition of the properties left over by his father and it is coming for trial. Therefore, since long time, there are

Page No.3 of 13 4

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

no talking terms and visiting terms among the plaintiff and himself since from the date of suit filed by the defendant. As the plaintiff developed grouse against the defendant, because of the defendant filed the suit against him, as such, the plaintiff forged the signature of defendant and filed a suit against the defendant. The signature of the defendant on the alleged endorsement is forged by the plaintiff.

Therefore, the suit promissory note and the endorsement on the reverse of the promissory note both are rank forged one. Hence, the suit is liable to be dismissed with costs.

6. Based on the above pleadings, the Trial Court framed the following issues:

(1). Whether the plaintiff and the defendant agreed to share of Pedakarma expenses of father?

(2). Whether the accounts were settled in the presence of elders and the defendant is liable to pay Rs.74,200/- with interest?

(3). Whether the defendant himself meet his share of expenses?

(4). Whether the plaintiff forged the signature of the defendant as the defendant filed a suit for partition in O.S.No.319/2011?

(5). Whether the plaintiff is entitled for recovery of suit amount based on the suit pronote?

7. In order to prove his case, the plaintiff – Parasa Venkanna got examined himself as P.W.1 and G.Naga Raju got examined as

P.W.2 and Exs.A.1 to A.4 are marked. On behalf of defendant, Parasa

Lakshmi Narayana got examined himself as D.W.1. On hearing both sides and on considering oral and documentary evidence, the learned

Additional Senior Civil Judge, Machilipatnam Dismissed the suit with

costs. Aggrieved by the same, the present appeal is filed.

Page No.4 of 13 5

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

8. Now the points for consideration are:

(1). Whether the defendant agreed to share the expenses for pedakarma of his father and asked the plaintiff to spent the money?

(2). Whether the defendant executed the suit promissory note for an amount of Rs.74,200/- in the presence of elders, after settling the accounts and agree to pay the same with interest at the rate of 24% per annum?

(3). Whether the plaintiff forged the signature of defendant on the suit promissory note, as well as the endorsement with regard to Rs.3,000/-?

(4). Whether the plaintiff is entitled to recover the suit amount as prayed for?

(5). To what relief?

9. Heard both sides.

Point Nos.(1) to (3):

Since these three points are interconnected with each other, this

Court intended to answer them together.

10. The plaintiff – Parasa Venkanna, who was examined as

P.W.1, reiterated the plaint averments in his evidence affidavit.

According to the case of the plaintiff, at the request of defendant, he incurred expenses of Pedakarma of their father. On 11.07.2010 before the village elders, the expenses were sort out and the defendant was liable to pay an amount of Rs.74,200/-. On that day, the defendant executed Ex.A.1 demand promissory note in favour of the plaintiff and agree to repay the same with interest at the rate of 24% per annum on demand either to the plaintiff or to his order. On the same day an amount of Rs.3,000/- was deducted by way of endorsement on the reverse of the promissory note under Ex.A.2, as such, the defendant is liable to pay the suit amount only. As the defendant not coming forward to pay back the money in spite of demands, the plaintiff got

Page No.5 of 13 6

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

issued a legal notice dated 13.02.2012 (Ex.A.3) and the same was received by the defendant under Ex.A.4 postal acknowledgment on 21.02.2012.

11. Contrary to the above, the defendant – Parasa

Lakshminarayana, who got examined himself as D.W.1, reiterated the written statement contents in his chief evidence affidavit. As per his contention, himself, plaintiff and their other brother Naga Malleswara

Rao performed the last rites of their father. Their brother Naga

Malleswara Rao was a person actually performed the ceremonies being elder and all the three brothers spent the amount together. Therefore, the contention of the plaintiff that he spent all the amounts to perform the Pedakarma and the share of the defendant is calculated at

Rs.74,200/-, for which, the defendant executed the suit promissory note is not correct. The plaintiff never spent the total amount to perform the funeral expenses of their father. The promissory note is rank forgery one as the defendant filed a suit in O.S.No.319/2011 on the file Additional Senior Civil Judge’s Court, Machilipatnam for partition of the properties against the plaintiff, as a counterblast the plaintiff filed this suit by forging the signatures of defendant.

12. It is specific case of plaintiff that after sort out of the amounts in respect of the expenses incurred for pedakarma of father of the plaintiff and defendant, the defendant due an amount of

Rs.74,200/- to the plaintiff. Therefore, before elders the defendant executed Ex.A.1 suit promissory note and it was happened on 11.07.2010 as the defendant stated that he also incurred an amount of Rs.3,000/- and the same was accepted by the plaintiff. There was an endorsement on the reverse of the suit promissory note and the

Page No.6 of 13 7

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

said endorsement is marked as Ex.A.2. It was also return on 11.07.2010 itself.

13. In order to prove the due execution of suit promissory note by the defendant, the plaintiff placed the original promissory note

before the court for its inspection, which discloses that the promissory

note is attested by two witnesses viz., Gudese Veera Swamy and

Gudapati Naga Raju (P.W.2) and it was scribed by one Muthu

Seetharamaiah. There are two thumb impressions said to have been put by the defendant. P.W.2 – G.Naga Raju, who is the one of the attesters, in his evidence he deposed that the village elders attended the meeting on 11.07.2010 for verification of accounts relating to performing the pedakarma of father of plaintiff and defendant. After tallying the expenses, the defendant was liable to pay an amount of

Rs.74,200/-. Therefore, the defendant executed the demand promissory note in favour of the plaintiff agreeing to repay the same with interest at the rate of 24% per annum. Further an amount of

Rs.3,000/- was deducted by way of endorsement on the reverse of promissory note. As such, the defendant was liable to pay the amount with interest to the plaintiff. In his cross examination also he reiterated that the defendant executed the suit promissory note in respect of his liability to meet the funeral expenses and other functions, consequent to the death of father of plaintiff and defendant and total an amount of

Rs.2,25,000/- was spent by the plaintiff, defendant and their other brother and also stated that the plaintiff incurred all expenses. There is no denial to the evidence of P.W.2 that with regard to tallying of accounts.

Page No.7 of 13 8

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

14. The defendant in his cross examination admitted that he had no dispute with P.W.2 and also the elder Muthu Seetharamaiah, who is the scribe of the promissory note. If such is the case, where is the need for P.W.2 to say false against the defendant, unless the suit promissory note transaction really happened in his presence.

15. The main contention of the defendant is that the suit promissory note is forged one. But, he had not taken any steps to take the promissory note to the experts for comparing the signatures/ thumb impressions on Ex.A.1 promissory note with his admitted thumb impressions.

16. Anyhow, it is the burden of the plaintiff to prove the due execution of the promissory note/Ex.A.1 before the court for its inspection. The plaintiff-P.W.1 deposed that the promissory note is executed in respect of the share of the amount of defendant incurred by the plaintiff for their father death ceremony (pedakarma). The

P.W.2 with whom, admittedly the defendant has no disputes, he is one of the attestors of Ex.A.1 promissory note. He categorically deposed that on 11.07.2010 the village elders attended the meeting for verification of accounts relating to performing the pedakarma to the father of plaintiff and defendant. After calculating the expenses, the defendant was found liable to pay an amount of Rs.74,200/-, for the said amount the defendant executed a promissory note in favour of the plaintiff agreeing to repay the said amount with interest at the rate of 24% per annum. Further an amount of Rs.3,000/- was deducted by way of endorsement (Ex.A.3) on the demand promissory note. In his cross examination also, he reiterated the same, thereby, the evidence of P.W.2 is coupled with Ex.A.1 towards the due execution of the suit

Page No.8 of 13 9

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

promissory note by the defendant and his liability incurred by the plaintiff towards performing the death ceremony of their father.

17. It is contended by counsel for defendant that, it is admitted by the P.W.1 as well as P.W.2 that no consideration was passed under Ex.A.1 promissory note on 11.07.2010. The plaintiff failed to produce the accounts or vouchers in respect of the amount said to have been spent by the plaintiff for performing the death ceremony of father of plaintiff and defendant. Therefore, an adverse influence be drawn against the plaintiff. The plaintiff cannot have any right to enforce the suit promissory note.

18. In support of his arguments, the defendant relied on the judgment reported in AIR 1997 AP 139 in G.Vasu v. Syed Yaseen

Sifuddin Quadri, wherein, it was held by the Hon’ble High Court that:

“When the creditor failed to produce his account books as presumption under Section 114(g) be raised with the evidence, if produced, would have shown the non- existence of consideration. The presumption under Section 118 of Negotiable Instruments Act was rebutted by the presumption under Section 114 of the Indian Evidence Act”.

19. But the facts of the reported case and facts of the case in hand are totally different. Admittedly, in the above referred case, the plaintiff is the creditor, who is maintain the account books, but failed to produce the same before the court. But the facts of the present case on hand are that though consideration was not passed under

Ex.A.1 on 11.07.2010 i.e., date of execution of it, but it was drafted with regard to the amount already due by the defendant to the plaintiff. In the presence of village elders, the plaintiff and defendant sort out the account, finalized the same and the defendant accepted the same and executed the suit promissory note in favour of the

Page No.9 of 13 10

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

plaintiff. Therefore, it can be said that the promissory note is executed by the defendant with regard to the amount due by him to the plaintiff. On the same day itself, an amount of Rs.3,000/- was deducted by making an endorsement under Ex.A.2. Of course, Ex.A.2 endorsement does not contain any thumb impression and signature of the defendant. But it is the evidence of P.Ws.1 and 2 that the said amount, at the request of defendant, reduced from the promissory note amount by the plaintiff in the presence of elders and P.W.2.

Hence, it cannot be said that the promissory note is not supported by any consideration and it is supported by the past liability/ past consideration.

20. In the promissory note as well as in Ex.A.3 notice also, it was not specifically mentioned that the promissory note was executed in respect of the expenses incurred for the pedakarma of father of plaintiff and defendant. With regard to the wording in Ex.A.1 promissory note that “ఇం�� �ప�ఫలం నగ�� ��� �� గ�క ���న�”. But at specific column of the promissory note for what purpose it is mentioned that expenses for ‘Karma’ of father of the defendant. Therefore, frankly speaking there is a specific mention with regard to consideration is concerned and it is not the case of the plaintiff or defendant as there is any account book or vouchers in respect of the amount spent for pedakarma of their father. Therefore, the question of production of vouchers or accounts does not arise.

Anyhow, it is specific evidence of P.Ws.1 and 2 that in the presence of elders, the amount was sort out and found that the defendant is liable to pay an amount of Rs.74,200/-. Therefore, for the said amount, the promissory note was executed by the defendant, thereafter, as he said

Page No.10 of 13 11

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

that he spent an amount of Rs.3,000/- and the same was endorsed on the reverse of the promissory note, which endorsement is marked as

Ex.A.2. By deducting the said amount, the plaintiff filed the suit for recovery of the amount due by the defendant.

21. It is submitted by the learned counsel for the appellant/plaintiff that merely because the consideration shown was not same as indicated in the promissory note and the same is not on the failure of the plaintiff.

22. In support of the said contention, the plaintiff relied on the

judgement reported in Bishambhar Dayal and others v. Viswana

Agarwal, wherein, it was held by the Hon’ble Allahabad High Court that:

“Settled principal is that despite the failure of the plaintiff to establish that the consideration passed in cash for the promissory note, he may get a decree on the basis of admission or evidence placed on record from the other side provided the same establishes that there was some other kind of consideration in lieu of which the promissory note could be executed. The presumption under Section 118 of the Negotiable Instrument is that the promissory note was made for consideration; this does not fail on account merely of the consideration being shown to be not the same as indicated in the promissory note”.

23. Though the defendant contended that the suit promissory note is a rank forged one. But as could be seen from in the cross examination of P.W.1 it was stated that “it is true that the defendant executed promissory note for his share in the total expenses of performing pedakarma and other ritual of his father”. It indicates that there is an admission from the side of defendant with regard to execution of promissory note. Anyhow, in further, it is further admitted by the P.W.1 that in Ex.A.1 promissory note, it was not mentioned that the defendant executed the promissory note towards his share of

Page No.11 of 13 12

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

expenses in performing the pedakarma and other rituals of his father.

Perhaps, he answered that question whether there is such specific mention in the promissory note. But in the promissory note at the column, either of the parties it is specifically mentioned that expenses in respect of pedakarma of his father. So, broadly speaking, the contents in Ex.A.1 promissory note are corroborating the evidence of

P.W.1 and P.W.2 that after calculating the accounts before village elders, it was found that the defendant due amount to the plaintiff, which amount was incurred by the plaintiff for performing the pedakarma of father of plaintiff and defendant and the defendant executed the promissory note towards his share of expenses which were incurred by the plaintiff. Hence, it can be said that the defendant failed to prove that the suit promissory is forged one.

24. In view of the above discussion, this court concludes that the plaintiff spent the amount for performing the Pedakarma of father of plaintiff and defendant. Aafter settling the accounts in the presence of elders, the defendant was found to pay an amount of Rs.74,200/-, out of which Rs.3,000/- were deducted. Thereby, the defendant executed Ex.A.1 promissory note and there is an endorsement under

Ex.A.2. There was a failure on the part of the defendant to prove that the suit promissory is rank forged one. Hence, point Nos.(1) to (3) are answered accordingly against the defendant/respondent and in favour of the plaintiff/appellant.

Point No.(4):

25. The plaintiff filed the suit only after deducting the amount of Rs.3,000/- and endorsed on the reverse of promissory note under

Ex.A.2 . For remaining amount i.e., Rs.71,200/- he filed the suit and

Page No.12 of 13 13

Principal District Judge,

Appeal Suit No.11 of 2016, Krishna, Machilipatnam.

Dt: 04.01.2022.

also for subsequent interest in total for an amount of Rs.1,11,784/- (Rupees one lakh eleven thousand seven hundred and eighty four only) for which amount certainly the plaintiff is entitled to recover from the defendant. Accordingly, point No.4 is also answered in favour of the appellant/plaintiff and against the respondent/defendant.

Point No.(5):

26. In the result, the Judgment and Decree passed in

O.S.No.353 of 2012, dt.03.11.2015 on the file of Additional Senior

Civil Judge’s Court, Machilipatnam is hereby SET-ASIDE.

The suit is decreed for an amount of Rs.1,11,784/- (Rupees one lakh eleven thousand seven hundred and eighty four only). The appellant/plaintiff is entitled to recover the said amount with subsequent interest at the rate of 12% per annum from the date of suit till the date of decree, thereafter, at the rate of 6% per annum till the date of realization on principal amount of Rs.71,200/-.

Appeal is ALLOWED, accordingly.

Dictated to the Stenographer, transcribed by him, corrected and pronounced

by me in open Court on this the 4 th day of January, 2022.

Principal District Judge,

Krishna, Machilipatnam.

Appendix of Evidence - No oral or documentary evidence has been adduced by either of the party before the Appellate Court –

Principal District Judge,

Krishna, Machilipatnam.

Copy to:

The Additional Senior Civil Judge’s Court, Machilipatnam.

Page No.13 of 13

1

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

In the Court of Principal District Judge,

Krishna at Machilipatnam

Present: - Sri Guduri Rama Krishna, B.Sc., B.L.,

Principal District Judge,

Krishna at Machilipatnam

Friday, this the 31st day of December, 2021

Appeal Suit No.89 of 2016

Between:

Shaik Hidayat Ali, S/o. late Abdul Majeed, Muslim, 60 years, Properties, R/o. Nuruddinpet, Machilipatnam, Bandar Mandal, Krishna District. … Appellant/Plaintiff

A n d

Ch.Nageswara Rao, S/o. Venkateswara Rao, Hindu, 43 years, Employee, R/o. Door No.23/146, opposite Sri Chaitanya College, Shaik Imam Street, Ramanaidupet, Machilipatnam, Bandar Mandal, Krishna District. … Respondent/Defendant

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN O.S.NO.254 OF 2013 PASSED BY THE I ADDITIONAL JUNIOR CIVIL JUDGE, MACHILIPATNAM ON 08.12.2015, MADE IN:

Shaik Hidayat Ali, S/o. late Abdul Majeed, Muslim, 58 years, Properties, R/o. Nuruddinpet, Machilipatnam, Bandar Mandal, Krishna District. … Plaintiff

A n d

Ch.Nageswara Rao, S/o. Venkateswara Rao, Hindu, 40 years, Employee, R/o.Door No.23/146, opposite Sri Chaitanya College, Sk.Imam Street, Ramanaidupet, Machilipatnam, Bandar Mandal, Krishna District. … Defendant

This appeal suit is coming before me on 18.11.2021 for final hearing in the presence of Sri Md. Rafi, Advocate for the Appellant/ Plaintiff and the Respondent called absent, remained ex parte and the matter is having stood over for consideration till this day and this Court delivered the following:

J U D G M E N T

The challenge under this appeal is the Judgment and Decree passed in O.S.No.254 of 2013, dt.08.12.2015 on the file of I Additional

Junior Civil Judge’s Court, Machilipatnam. The appellant herein is the plaintiff, the respondent herein is the defendant in O.S.No.254 of

Page No.1 of 13 2

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

2013. Therefore, this Court is also going to refer the parties as they arrayed before the Trial Court in O.S.No.254 of 2013.

2. Since this Court being the First Appellate Court, is also a fact finding Court, invariably, this Court must rely on the pleadings and evidence let in by both parties in the suit.

3. The case of plaintiff:

The defendant, for the purpose of his manifest benefit and imperative need of his family expenses, to discharge his sundry debts, borrowed an amount of Rs.10,000/- on 25.11.2010 and executed a promissory note in favour of the plaintiff on the same day agreeing to repay the same together with interest at 24% per mensem, yearly compound either to the plaintiff or to his order on demand and delivered the same to the plaintiff after receiving the entire consideration thereof.

3.1. Again, the defendant borrowed a sum of Rs.28,000/- from the plaintiff on 11.08.2011 for the purpose of his family expenses and to discharge his sundry debts, executed a promissory note in favour of the plaintiff on the same day agreeing to repay the said amount together with interest at 24% per mensem yearly compound either to the plaintiff or to his order on demand and delivered the same to the plaintiff after receiving the entire consideration thereof.

3.2. It is further submitted that after receiving the considerations under the above promissory notes by the defendant, the plaintiff requested the defendant to fill up the promissory notes with his own handwriting in the presence of attestors. The defendant accepted the said request but intentionally, instead of filling up the entire promissory notes with his own handwriting, the defendant only filled up the amount and date columns on the top of the promissory

Page No.2 of 13 3

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

note and also filled the middle of the promissory note by mentioning the amount in figures and words. The defendant mentioned the interest column in second promissory note as ‘2’ as well as in writing and left the remaining columns of the promissory notes in blank. The defendant did this type of semi-finished two promissory notes.

Thereafter, the plaintiff filled the promissory notes with another scribe.

3.3. The plaintiff demanded the defendant for repayment of amounts under two promissory notes, but the defendant neither chosen to repay the amount nor to pay interest and postponed the same on some pretext or the other. Then, the plaintiff got issued

Registered Legal Notice, dt.28.10.2013 demanding the defendant to pay the due under the two promissory notes. The defendant intentionally avoided and evaded to receive the notice, the same was ‘Returned’ with an endorsement as ‘NO SUCH PERSON IN THIS DOOR

NUMBER’ on 30.10.2013. Hence, the plaintiff is constrained to file the present suit for recovery of the amount of suit promissory notes.

4. The defendant in his written statement denied the material averments in the plaint, more specifically denied the borrowing of

Rs.10,000/- and Rs.28,000/- from the plaintiff on 25.11.2010 and 11.08.2011, respectively and execution of two promissory notes in favour of the plaintiff, so also receiving of consideration thereunder.

4.1. It is further submitted that his name is ‘Cheboyina Naga

Devendra Rao’, but on the promissory note it was written as ‘Ch.Nageswara Rao’. He used to sign as ‘Ch.Naga Devendra Rao’, he never sign as ‘Ch.Nageswara Rao’. The plaintiff not known the correct name of the defendant, created two promissory notes with an intention to cause wrongful loss to the defendant. Therefore, both promissory notes are rank forged documents. The plaintiff filed the suit

Page No.3 of 13 4

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

with forged signatures of the defendant. The plaintiff not approached the Court with clean hands. Finally, prayed the Court to dismiss the suit with costs.

5. Based on the above pleadings, the Trial Court framed the following issues:

1. Whether the plaintiff is entitled for the suit amount from the defendant as prayed for?

2. Whether the suit promissory notes are true, valid and binding on the defendant?

3. Whether the suit promissory notes are forged documents or not?

4. To what relief?

6. In order to prove his case, the plaintiff, Shaik Hidayat Ali got examined himself as P.W.1, got marked Ex.A.1 to Ex.A.4 through his evidence. Karra Srinivasa Rao was examined as P.W.2, but later his evidence is ‘Eschewed’. G.Bhaskara Babu was examined as P.W.3. On behalf of the defendant, Cheboyina Naga Devendra Rao (defendant) was examined as D.W.1. G. Dharma Rao was examined as D.W.2.

Ex.B.1 to Ex.B.5 documents are marked.

7. On hearing both sides and on considering oral and documentary evidence, the learned I Additional Junior Civil Judge,

Machilipatnam ‘Dismissed the suit with costs’.

8. Aggrieved by the same, the present appeal is filed.

9. Heard the learned counsel for appellant.

10. The points for consideration are:

1. Whether the defendant borrowed an amount of Rs.10,000/- on 25.11.2010 and an amount of Rs.28,000/- on 11.08.2011 from the plaintiff agreeing to repay the said amounts with interest at the rate of 24% per annum

Page No.4 of 13 5

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

(sick 24% per mensem) either to the plaintiff or to his order on demand?

2. Whether the suit promissory notes, dt.25.11.2010 and 11.08.2011 are forged as contended by the defendant?

3. Whether the plaintiff is entitled to recover the suit amount from the defendant as prayed for?

4. To what relief?

Point Nos.1 and 2:-

11. Since these two points are interconnected with each other, this Court intended to answer them together.

12. Before answering these two points, it is the right context to refer the grounds of appeal. It is submitted by the learned counsel

for appellant that, the Trial Court went wrong in holding that the

defendant had taken the plea that he is not ‘Ch.Nageswara Rao, Son of

Venkateswara Rao’ and the plaintiff did not take any steps to prove that the defendant is ‘Ch.Nageswara Rao’ but not ‘Nagadevendra Rao,

Son of Venkateswarlu’ are one and the same. The Trial Court wrongly observed that the plaintiff had not taken steps to correct the name of defendant after return of the legal notice, so also even after filing of the written statement. The Trial Court observation that when the disputed signatures of borrower Ch.Nageswara Rao on revenue stamps of Ex.A.1 and Ex.A.2 are compared with the admitted signatures of

Ch.Nagadevendra Rao available on record, they are not appeared like one even by naked eye, is an erroneous one.

13. The plaintiff Shaik Hidayat Ali, who was examined as P.W.1 reiterated the plaint averments in his chief-evidence affidavit.

According to him, on 25.11.2010 the defendant borrowed an amount of Rs.10,000/- and executed Ex.A.1 promissory note in his favour

Page No.5 of 13 6

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

agreeing to repay the said amount with interest at 24% per annum either to him or to his order on demand and delivered Ex.A.1 promissory note to him after receiving consideration thereof. The defendant put his signature in English across the revenue stamp in his presence and in the presence of two attestors Karra Srinivasa Rao,

G.Bhaskara Babu and scribe M.S.V.S.Gopalarao.

14. It is further contended that, again the defendant borrowed an amount of Rs.28,000/- from him on 11.08.2011 for the purpose of his family expenses and to discharge sundry debts. The defendant executed promissory note (Ex.A.1) in his favour agreeing to repay the same with interest at the rate of 24% per annum either to him or to his order on demand. Defendant put his signatures in English across the revenue stamp in his presence and in the presence of attestors and scribe. Later, as the defendant, despite demands from the plaintiff, failed to pay back the amounts due under the suit promissory notes, the plaintiff got issued Registered Legal Notice, dt.28.10.2013 (Ex.A.3) demanding the defendant to pay the amounts due under

Ex.A.1 and Ex.A.2, suit promissory notes. The defendant evaded to receive the said legal notice, the same was ‘Returned’ with an endorsement ‘NO SUCH PERSON IN THIS DOOR NUMBER’. Ex.A.4 is the Unserved Registered Notice addressed to the defendant.

15. P.W.3/G.Bhaskara Babu, one of the attestors of both promissory notes, supported the case of plaintiff. According to him, the defendant borrowed an amount of Rs.10,000/- from the plaintiff on 25.11.2010 and an amount of Rs.28,000/- on 11.08.2011. After receiving the consideration from the plaintiff, the defendant put his signature in English across the revenue stamp on the promissory notes in his presence and in the presence of another attestor Karra Srinivasa

Page No.6 of 13 7

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

Rao (P.W.2), whose evidence in chief is ‘Eschewed’. Those transactions were took place in his presence.

16. On the other hand, the defendant (the defendant in this suit is one Ch.Nageswara Rao) Cheboyina Naga Devendra Rao, who got examined as D.W.1, deposed in his evidence that in all the promissory notes the name of the borrower is mentioned as

Ch.Nageswara Rao, but his correct name is Cheboyina Naga Devendra

Rao. He used to sign as ‘Ch.Naga Devendra Rao’, but he never signed as ‘Ch.Nageswara Rao’. The plaintiff not known his correct name, hence, created the said suit promissory notes with an intention to cause wrongful loss to him. Both suit promissory notes are rank forged documents. He never borrowed any amounts from the plaintiff, more particularly Rs.10,000/- on 25.11.2010 under Ex.A.1 and Rs.28,000/- on 11.08.2011 under Ex.A.2 promissory notes in favour of the plaintiff.

17. To substantiate the above contention, he filed Ex.B.1 attested copy of Order issued by the MEO in RC.No.136/MEO/2012, dt.22.12.2012; Ex.B.2 attested copy of Income Certificate obtained from Me-seva; Ex.B.3 is the attested copy of LIC receipt, dt.10.11.2012; Ex.B.4 is the attested copy of Voter ID and Ex.B.4 is the attested copy of PAN card. In Ex.B.1, his name is mentioned as ‘CH N DEVENDRA RAO’. Ex.B.2 to Ex.B.5 are showing the name as ‘CHEBOYINA NAGA DEVENDRA RAO’, father’s name is ‘VENKATESWARLU’.

18. In his cross-examination, the plaintiff (P.W.1) stated that he does not know the complete particulars and name of defendant, but the defendant put his signature as ‘Ch.Venkateswarao’. As the defendant is having a shop he lent amount to him on second occasion.

He cannot say the door number of the shop of the defendant. The

Page No.7 of 13 8

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

above answers given by the plaintiff is against the common tendency of the natural course of human. When he lent the amounts, can anyone expect that he will lent the money to a person, whose name and address particulars are completely not known? In addition to that, he categorically admitted that he has no documentary proof to show with regard to source of income for the promissory note amounts. The scribe and attestors were brought by the defendant himself.

19. Contrary to the said evidence, P.W.3 in his cross- examination stated that as per the request of the plaintiff he attested the documents. The defendant is running tailor shop, but he cannot say the address particulars of the defendant shop. He does not know the house address of the defendant. He is only the attestor of Ex.A.1 and Ex.A.2. And again contradicting the above statement, stated that he signed for one time. He is a RTC Conductor. He cannot say whether he was on duty at the time of transaction of both promissory notes. He did not count the amount.

20. At this context, it is argued by the learned counsel for plaintiff that it is established through the evidence of P.W.1 and P.W.3 that the defendant executed Ex.A.1 and Ex.A.2 promissory notes and certain columns were filled by him with his own handwriting.

Therefore, in view of Section 20 read with Section 42 of Negotiable

Instruments Act, 1881 they are valid and the suit is ought to have been decreed by the Trial Court. In support of the above contention he relied upon the Judgment of the Hon’ble High Court (Division

Bench) reported in 2002 Suppl. (2) ALD 610 in Duggineni

Seshagiri Rao v. Kothapalli Venkateswara Rao’s case. The ratio of the above Judgment is that when execution of promissory is proved, there is no consequences of non-mentioning of the name of the person

Page No.8 of 13 9

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

advancing the loan amount. The promissory note, though semi-filled or given in blank is valid and enforceable under law.

21. Absolutely, there is no dispute with regard to the legal proposition laid down in the above referred Judgment of the Hon’ble

High Court. Here, in this case, the defendant not admitted the execution of Ex.A.1 and Ex.A.2 promissory notes. He categorically denied borrowing of amounts from the plaintiff and also execution of promissory notes under Ex.A.1 and Ex.A.2 on 25.11.2010 and 11.08.2011, respectively. Though, P.W.1 and P.W.3 stated in their evidence that the defendant is the borrower and execution of Ex.A.1 and Ex.A.2 promissory notes on the respective dates, the defendant in the suit is one ‘Ch. Nageswara Rao, S/o. Venkateswara Rao’. The same name and particulars are reflecting on Ex.A.1 and Ex.A.2 as borrower, but D.W.1 is a different person. According to him, he is not ‘Ch.Nageswara Rao’, he is ‘Ch.Naga Devendra Rao,

S/o.Venkateswarlu’, a private employee. When it was suggested to

D.W.1 by the counsel for the plaintiff, he has been working as a private employee, as per the particulars mentioned in his evidence affidavit, since he is working on temporary basis in Government

Institute i.e., as an Work Instructor. He is resident of house bearing

Door No.23/146. The signature on Ex.A.1 and Ex.A.2 is not that of him, he does not know the attestors and scribe of Ex.A.1 and Ex.A.2.

When it was suggested to him that he brought them and obtained their signatures on Ex.A.1 and Ex.A.2, he denied the same. When the very execution of Ex.A.1 and Ex.A.2 promissory notes and receiving of consideration thereunder were specifically and categorically denied by the defendant and also disputing the identity by the defendant i.e., he is not ‘Ch.Nageswara Rao’, the maker of promissory notes.

Page No.9 of 13 10

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

22. Of course, it is admitted by him in his cross-examination that the letters ‘Ch’ at his signatures on written statement, Vakalat, evidence affidavit etc., are there and there is same letters ‘Ch’ on

Ex.A.1 and Ex.A.2 promissory notes. But, he denied the suggestion that those letters ‘Ch’ on Ex.A.1 and Ex.A.2 promissory notes are alike his signatures on written statement, Vakalat, evidence affidavit etc.

When such is the case, it is for the plaintiff to prove that D.W.1,

Cheboyina Naga Devendra Rao is the executant/maker of Ex.A.1 and

Ex.A.2 promissory notes.

23. According to Section 4 of Negotiable Instruments Act, 1881, a promissory note is an instrument in writing (not being a bank- note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money to or to the order of a certain person, or to the bearer of the instrument. Though, Ex.A.1 and Ex.A.2 contains the signatures of ‘Ch.Nageswara Rao’ as maker of the promissory notes, but, who is said ‘Ch.Nageswara Rao’? Ex.B.1 to

Ex.B.5 are showing that D.W.1 is not ‘Ch.Nageswara Rao’, he is ‘Cheboyina Naga Devendra Rao’. Therefore, there is a dispute with regard to identity of the maker. In order to clear of the said dispute/ ambiguity, it is the burden on the plaintiff, but, the evidence of P.W.1 and P.W.3, more particularly, the admissions in the cross-examination that ‘I do not know the complete address and name of the defendant, but the defendant put his signature as ‘Ch. Nageswara Rao’ and ‘I cannot say specifically the door number of the defendant’ are giving an impression that the plaintiff himself does not know the particulars of the defendant or the maker of Ex.A.1 and Ex.A.2 promissory notes.

24. P.W.3 also in his cross-examination stated that he does not know the house address of defendant, but, he know his surname is

Page No.10 of 13 11

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

‘Ch’. But, he does not know what it is? He signed one time, but here there are two promissory notes. Both P.W.1 and P.W.3 failed to state the place of execution of the promissory notes and complete description of the maker of Ex.A.1 and Ex.A.2 promissory notes. The plaintiff’s specific contention is that D.W.1 put his signature as ‘Ch.

Nageswara Rao’ on both promissory notes. If such is the case, there is no point in sending Ex.A.1 and Ex.A.2 promissory notes to Handwriting

Expert to compare the signatures on Ex.A.1 and Ex.A.2 with the admitted signatures of D.W.1.

25. Of course, it is submitted by the learned counsel for plaintiff that under Section 73 of Indian Evidence Act, the Court is having ample power to compare the signatures. In support of the said contention, he relied upon a Judgment reported in 2006 (2) ALT 202

Bonala Raju and another v. Sarupuru Sreenivasulu’s case, wherein it was held by the Hon’ble High Court that the Court has power to compare the disputed signature with admitted signature to decide its genuineness. The Presiding Officer of the Trial Court compared the signatures on Ex.A.1 and Ex.A.2 with the admitted signatures of D.W.1 and came to a conclusion that they are not tallying with each other.

26. No doubt the Court is having jurisdiction under Section 73 of Indian Evidence Act to compare the disputed signatures with admitted signatures. But, this Court feels that in view of the scientific development, it is not safe to compare the disputed signatures with admitted signatures by the Court itself. Since both parties not prepared to send the signatures to get the opinion of the Expert, even if the disputed signatures are compared with the admitted signatures by invoking Section 73 of Indian Evidence Act, though certain letters

Page No.11 of 13 12

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

like ‘Ch’, ‘N’ and ‘R’ in the disputed signatures are similar with that of the admitted signatures of D.W.1, it is clear from the evidence of

P.W.1 and P.W.3 that the signatures on Ex.A.1 and Ex.A.2 promissory notes are of ‘Ch.Nageswara Rao’, but the admitted signatures of D.W.1 are ‘Cheboyina Naga Devendra Rao’. ‘Devendra’ is missed in the signatures on Ex.A.1 and Ex.A.2. Anyhow, mainly the description of the maker is wrong in Ex.A.1 and Ex.A.2 as ‘Ch.Nageswara Rao, Son of Venkateswara Rao’. So, the defendant is totally different from

D.W.1, Cheboyina Naga Devendra Rao. Therefore, it can be said that there is a failure on the part of the plaintiff to establish that D.W.1,

Cheboyina Naga Devendra Rao is the maker of Ex.A.1 and Ex.A.2 promissory notes.

27. With regard to passing of consideration is concerned,

P.W.1 and P.W.3 in their chief-evidence stated that the defendant received the consideration under Ex.A.1 and Ex.A.2 on respective dates, but in their cross-examination P.W.3 stated that he did not count the amount and only once he signed on the promissory notes.

On which promissory note he signed, is not clarified. At the cost of repetition, this Court is saying that the suit is filed on the foot of two promissory notes, but not a single promissory note. The defendant also on oath specifically contended that he never received any amount from the plaintiff. Therefore, it can be said that the oath against oath.

28. The crucial admission in the evidence of P.W.1 is that he had no base to show about the source of income, how he allegedly paid the amounts to the defendant on the respective dates of Ex.A.1 and Ex.A.2. He failed to explain it. Those admissions and evidence of

P.W.1 and P.W.3 probablizing the case of defendant that he did not receive any consideration from the plaintiff.

Page No.12 of 13 13

Principal District Judge,

Appeal Suit No.89 of 2016 Krishna, Machilipatnam.

Dt: 31.12.2021.

29. For the above reasons, this Court concludes that the plaintiff failed to establish that the defendant borrowed an amount of

Rs.10,000/- and Rs.28,000/- on 25.11.2010 and 11.08.2011, respectively, and executed the suit promissory notes in favour of plaintiff. Hence, point Nos.1 and 2 are answered against the plaintiff.

Point No.3:

30. In view of this Court’s opinion in point Nos.1 and 2, the plaintiff is not entitled to receive the suit amount. This point is answered accordingly against the plaintiff.

Point No.4:

31. IN THE RESULT, the Judgment and Decree in O.S.No.254 of 2013, dt.08.12.2015 on the file of I Additional Junior Civil Judge,

Machilipatnam is hereby CONFIRMED. Appeal is DISMISSED. Both parties shall bear their own costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced

by me in open Court on this the 31 st day of December, 2021.

Sd/- G. Rama Krishna,

Principal District Judge,

Krishna, Machilipatnam.

Appendix of Evidence - No oral or documentary evidence has been adduced by either of the party before the Appellate Court –

Sd/- G. Rama Krishna,

Principal District Judge,

Krishna, Machilipatnam. Copy to:

The I Additional Junior Civil Judge’s Court, Machilipatnam.

// True Copy //

Principal District Judge,

Krishna, Machilipatnam.

Page No.13 of 13

1

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

In the Court of Principal District Judge,

Krishna at Machilipatnam

Present: - Sri Guduri Rama Krishna, B.Sc., B.L.,

Principal District Judge,

Krishna at Machilipatnam

Monday, this the 13th day of December, 2021

Appeal Suit No.83 of 2015

Between:

State Bank of India, Main Branch, represented by its Chief Manager, Machavaram, Machilipatnam. … Appellant/Plaintiff

A n d

1. P.Srinivasa Rao, S/o.Rama Chandra Rao, Hindu, 47 years, R/o.D.No.3-171-B, Vorregudem, Machilipatnam, Krishna District.

2. Matta Naga Mani, W/o. late Samson, Hindu, 42 years, R/o.D.No.4/950, Rajupeta, Machilipatnam, Krishna District. … Respondents/Defendants

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN O.S.NO.287 of 2009 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, MACHILIPATNAM ON 30.05.2015, MADE IN:

State Bank of India, Main Branch, represented by its Chief Manager, Machavaram, Machilipatnam. … Plaintiff

A n d

1. Matta Samson, S/o. Matta Mangaiah, Hindu, 43 years, R/o.D.No.4/950, Rajupeta, Machilipatnam. (Died)

2. P.Srinivasa Rao, S/o.Rama Chandra Rao, Hindu, 47 years, R/o.D.No.3-171-B, Varregudem, Machilipatnam, Krishna District.

3. Matta Naga Mani, W/o. late Samson, Hindu, 42 years, R/o.D.No.4/950, Rajupeta, Machilipatnam, Krishna District.

(Defendant No.3 is added as Legal Representative of the defendant No.1 as per the Orders in I.A.No.53 of 2014, dt.12.09.2014 on the file of

Additional Senior Civil Judge’s Court, Machilipatnam)

… Defendants

This appeal suit is coming before me on 03.12.2021 for final hearing in the presence of Sri Ramakanth, Advocate for the Appellant/ Plaintiff and of Sri Amees Ahmmed Raza, Advocate for the Respondent No.1/Defendant No.1 and Sri K.Gopala Krishna, Advocate for the Respondent No.2/Defendant No.2 and the matter is having stood over for consideration till this day and upon perusing the material papers on record, this Court delivered the following:

Page No.1 of 10 2

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

J U D G M E N T

The challenge under this appeal is the Judgment and Decree passed in O.S.No.287 of 2009, dt.30.05.2015 on the file of Additional

Senior Civil Judge. The appellant herein is the plaintiff, respondents

herein are the defendants in O.S.No.287 of 2009. Therefore, this Court is also going to refer the parties as they arrayed before the Trial Court in O.S.No.287 of 2009.

2. This Court being the First Appellate Court, is also a fact finding Court, therefore, invariably, for deciding this appeal, this Court must rely on the pleadings and evidence of both parties.

3. The case of plaintiff is that the 1st defendant submitted a loan application to the plaintiff bank on 23.07.2005 for personal loan of Rs.1,00,000/- promising to repay the said amount with interest at 10.25% per annum with quarterly rests. The 1st defendant executed the Personal Loan Agreement in favour of the plaintiff for

Rs.1,00,000/- on the same day. The 2nd defendant stood as guarantor for the 1st defendant in respect of the loan duly executed the

Guarantee Agreement in favour of the plaintiff bank. As per the terms and conditions of the Guarantee Agreement, it is a continuing guarantee in respect of personal loan of 1st defendant. The 1st defendant submitted his salary certificate to the plaintiff bank. The plaintiff bank sanctioned the personal loan to the 1st defendant, but utilized the loan for his domestic purpose.

3.1. The defendant Nos.1 and 2 are employees of Government.

The amount due under the loan was not paid back by the defendants to the plaintiff. They committed wilful default in repayment of the loan amount. On 21.11.2008, the 1st defendant executed Revival Letter

Page No.2 of 10 3

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

requesting him to repay the overdue amount in respect of his personal loan and has thus been intentionally avoiding payment of due amount.

The total amount is Rs.1,07,498/- is due as on 01.07.2009 to the plaintiff by the defendant. The defendants are jointly and severally liable to pay the loan amount. The liability of 2nd defendant as guarantor is coextensive with that of the 1st defendant under Section 128 of the Indian Contract Act. Hence, liability of the defendants is joint and several.

4. Since, during pendency of the suit, as the 1st defendant, the principal borrower died, his wife Matta Nagamani was impleaded as 3rd defendant in the suit. The defendant No.2 remained ex parte. The 3rd defendant filed her written statement wherein the material plaint averments were denied besides contending that she is totally strange to the loan transaction. She is no way concerned with the alleged loan transaction. She is unnecessarily impleaded as defendant to the suit transaction. Hence, she is not liable to pay any loan amount to the plaintiff bank. Hence, suit is liable to be dismissed against her.

4.1. It is further contended that as per her information, the 1st defendant i.e., her husband not executed the alleged Revival Letter.

The suit is barred by time. On that ground also, the suit is liable to be dismissed. There is no cause of action for the plaintiff to file the suit.

There are no bonafides for the plaintiff to file the suit. Finally, prayed the Court to dismiss the suit.

5. Based on the above pleadings the Trial Court framed the following issues:

1. Whether the plaintiff bank is entitled for the suit claim?

2. To what relief?

Page No.3 of 10 4

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

6. In order to substantiate the case of plaintiff, K.V.Nanda

Kishore, the Deputy Manager, State Bank of India, Main Branch,

Machilipatnam was examined as P.W.1, got marked Ex.A.1 to Ex.A.8 documents. None were examined on behalf of the defendants.

7. On hearing both sides and on considering the oral and documentary evidence, the learned Additional Senior Civil Judge,

Machilipatnam ‘Dismissed’ the suit. Aggrieved by the same, the present appeal is filed.

8. The points for consideration are:

1. Whether the defendant No.1 borrowed an amount of Rs.1,00,000/- on 23.07.2005 from the plaintiff bank agreeing to repay the same with interest at 10.25% per annum with quarterly rests?

2. Whether the defendant No.1 executed Revival

Letter on 21.11.2008?

3. Whether the suit is within the time / barred by time as contended by the defendant No.3?

4. Whether the plaintiff is entitled to receive the suit amount as prayed for?

5. To what relief?

Point No.1:-

9. K.V.Nanda Kishore, the Deputy Manager of State Bank of

India, who was examined as P.W.1, stated that the defendant No.1 executed an Agreement for personal loan of Rs.1,00,000/- on 23.07.2005, in consequent to his personal loan application, dt.23.07.2005 by receiving the said amount as a loan, he executed the

Loan Agreement on the same day itself. The defendant No.2 stood as guarantor for the loan amount received by the defendant No.1 and executed the Agreement of Guarantee in favour of plaintiff on the same day.

Page No.4 of 10 5

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

10. To substantiate his oral evidence, he filed Ex.A.1 Loan

Application Form showing his requirement of the loan and also the amount which shows that the loan amount of Rs.1,00,000/- is sanctioned by the plaintiff bank. Ex.A.2 is the Arrangement Letter signed by the then Branch Manager of plaintiff bank, defendant Nos.1 and 2, wherein it is specifically mentioned the term loan of

Rs.1,00,000/- was granted to the defendant No.1, who agreed to discharge the same with interest at 10.25% per annum at quarterly rests. Ex.A.3 is the Personal Loan Agreement executed by defendant

No.1 in favour of the plaintiff bank and Ex.A.4 is the Deed of

Guarantee executed by the defendant No.2 as a guarantee, wherein, the defendant No.1 as well as, the then Branch Manager of plaintiff also signed. There is no cross-examination from the side of defendants with regard to the above evidence of P.W.1 and Ex.A.1 to Ex.A.4.

Therefore, it can be said that there is an admission from the side of defendants as the evidence of P.W.1 remained unchallenged and unshaked, it can be said that the plaintiff able to prove that the defendant No.1 borrowed an amount of Rs.1,00,000/- from the plaintiff bank towards his personal loan on 23.07.2005, agreeing to repay the same with interest at 10.25% per annum with quarterly rests, for which loan the defendant No.2 stood as guarantor. This point is answered accordingly in favour of plaintiff.

Point Nos.2 & 3:-

11. Since these two points are interconnected with each other, this Court intended to answer them together.

12. According to the evidence of P.W.1, the defendant Nos.1 and 2, who are employees working in BSNL, Machilipatnam, not paid the loan amount to the plaintiff bank, they committed default. On

Page No.5 of 10 6

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

21.11.2008 the 1st defendant executed a Revival Letter requesting time to repay the overdue amount, the same was denied and disputed by the defendant No.3 in her written statement, but, by way of cross- examination it is admitted that on 21.11.2008, the defendant No.1 executed the revival letter. In his cross-examination, P.W.1 stated that after availing the loan, the defendant No.1 did not pay even a single pie. It is submitted by the counsel for plaintiff that the repayment is for 48 equated monthly instalments from the next month of date of loan i.e., 23.07.2005. The Revival Letter under Ex.A.5 is 21.11.2008.

Therefore, the said Revival Letter is before completion of the instalments amount, that too, it is an admission from the side of defendant No.1 acknowledging the amount due by the defendant No.1 to the plaintiff. Therefore, Ex.A.5 falls under Section 25 (3) of Indian

Contract Act, 1872. Contrary to the same, it is submitted by the counsel for defendant No.3 that P.W.1 admitted that no payment from the side of defendant Nos.1 and 2 after borrowing the loan. The

Revival Letter is after three years from the date of borrowal. According to Section 18 of Limitation Act, 1963, it is not an acknowledgment made within the period of limitation i.e., three years from the date of borrowal of the loan amount.

13. For which, it is again submitted by the learned counsel for plaintiff that the 48 equated monthly instalments will be completed by 23.07.2009, the 1st defendant executed Ex.A.5 Revival Letter on 21.11.2008 i.e., within the period of completion of loan instalments on 23.07.2009. Therefore, this suit filed on 19.10.2009 is within time, it is not barred by limitation.

Page No.6 of 10 7

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

14. First of all, the learned counsel for plaintiff himself confused. He is not sure whether the document i.e., Ex.A.5 comes within the Section 18 of the Limitation Act, 1963 or Section 25 (3) of the Indian Contract Act, 1872. If the date of borrowal is taken into consideration i.e., 23.07.2005, the suit is filed beyond three years.

Even Ex.A.5 acknowledgment said to have been given by defendant

No.1 on 21.11.2008 is beyond three years. Therefore, certainly Ex.A.5 will not falls as an acknowledgment as contemplated under Section 18 of the Limitation Act, 1872. Even if the contention of the learned counsel for plaintiff is taken into consideration that it is debt to be paid in 48 equated monthly instalments, there is no stipulation in Ex.A.2 and Ex.A.3 Loan Agreement, what is to be done if there is a default on the part of the defendant No.1 in paying any instalments?

15. Article 36 of Limitation Act, 1963 says that if it is a bond payable by instalments, the limitation is three years. The limitation starts run from the expiration of first term of payment as to the part then payable; and for the other parts, the expiration of the respective terms of payment. In Ex.A.3 there is no stipulation that if the defendant No.1 committed default in payment of any instalment after completion of the expiration of all the instalments, the plaintiff bank is entitled to recover the amount from the defendant Nos.1 and 2.

16. Article 37 of Limitation Act, 1963 is taken into consideration according to which if there is a bond payable by instalments, which provides that, if default be made in payment of one or more instalments, the whole shall be due. For that also, limitation for filing of the suit is within three years. The limitation starts run from the date when the default is made unless where the payee or obligee

Page No.7 of 10 8

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

waives the benefit of the provision and then when fresh default is made in respect of which there is no such waiver. With regard to the same also there is no stipulation in Ex.A.2 and Ex.A.3.

17. Though it is the evidence of P.W.1 that the defendant No.1 executed Ex.A.5 on 21.11.2008, which evidence is not corroborated by any other evidence with regard to the denial suggestion of defendant

No.3 counsel that Ex.A.5 is forged one and defendant No.1 had not executed it. In other words, it is for the defendant No.3 to prove

Ex.A.5 is not executed by defendant No.1, because Ex.A.5 is a document came into existence in the regular course of banking business of plaintiff. Unless the contrary is proved, it is deemed that

Ex.A.5 is true and correct in view of Section 114 of Indian Evidence

Act, 1872.

18. However, afresh it is contended by the counsel for plaintiff that Ex.A.5 falls under Section 25 (3) of Indian Contract Act, 1872. If such is the case “promise has to plead and prove four components.

Those are (1) there is a debt payable by promissor, (2) promissor acknowledges the debt, (3) promissor agreed to make payment under the contract, and (4) there is specific promise or undertaking in writing by the promissor to treat such acknowledgment of debt as fresh enforceable contract.” It is certainly required a stamp.

19. Ex.A.5 is unstamped document, for which stamp duty is required under Article 1 of Schedule I of Indian Stamp Act, 1922.

Therefore, as the document under Ex.A.5 is unstamped, it is inadmissible in evidence. In addition to that, the date of Ex.A.5 is 21.11.2008. The promise made by the defendant allegedly to pay the overdue amount of Rs.60,000/- is on or before 20.11.2008 i.e., one

Page No.8 of 10 9

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

day prior to alleged execution of Ex.A.5. Even if the document Ex.A.5 is taken into consideration that it is really executed by defendant No.1, the promise made under Ex.A.5 by defendant No.1 is impossible to perform, which is a void one as per Indian Contract Act, 1872.

Therefore, the plaintiff cannot act based on Ex.A.5. Hence, this Court conclude that Ex.A.5 is neither an acknowledgment under Section 18 of Limitation Act, 1963 nor an Agreement or undertaking for payment of the amount under Section 25 (3) of Indian Contract Act, 1872.

Hence, viewed in any angle, it can be said that the suit is barred by limitation.

20. Though, Ex.A.6 statement of account showing the due amount as on 31.03.2006 was Rs.1,07,497.72 paise, but, Ex.A.5 letter discloses that the defendant is due only Rs.60,000/- as overdue amount. The plaintiff bank issued legal notice, dt.21.07.2009 to the defendant Nos.1 and 2 which was received by them under Ex.A.8

Postal Acknowledgment. Under Ex.A.7 the defendants were demanded to pay to clear off the entire amount without mentioning the actual figure of the loan amount. The figures mentioned in Ex.A.5 and Ex.A.6 are not tallying with each other. The evidence of P.W.1 is very clear.

After availing the loan the defendant not paid even single pie. If such is the case, how the defendant No.1 executed Ex.A.5 on 20.11.2008 for an amount of Rs.60,000/- as overdue? It is his specific evidence that prior to the revival letter, plaintiff bank never issued notice to the defendant. If so, how Ex.A.7 and Ex.A.8 came into existence? It seems that P.W.1 came to the Court without knowing the real facts of the case. For the above reasons, the plaintiff is not entitled to recover the

Page No.9 of 10 10

Principal District Judge,

Appeal Suit No.83 of 2015 Krishna, Machilipatnam.

Dt: 13.12.2021.

suit amount as prayed for. The points are answered accordingly against the plaintiff.

Point No.4:-

21. In view of the Court’s opinion in point Nos.2 to 4, this appeal is liable to be dismissed.

Point No.5:-

22. IN THE RESULT, the Judgment and Decree passed in

O.S.No.287 of 2009, dt.30.05.2015 on the file of Additional Senior

Civil Judge’s Court, Machilipatnam is hereby CONFIRMED. Appeal is

DISMISSED.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in

open Court on this the 13 th day of December, 2021.

Principal District Judge,

Krishna, Machilipatnam. Appendix of Evidence - No oral or documentary evidence has been adduced by either of the party before the Appellate Court –

Principal District Judge,

Krishna, Machilipatnam.

Copy to:

The Additional Senior Civil Judge’s Court, Machilipatnam.

Page No.10 of 10

1

Principal District Judge,

Appeal Suit No.33 of 2020 Krishna, Machilipatnam.

Dt: 15.12.2021.

In the Court of Principal District Judge,

Krishna at Machilipatnam

Present: - Sri Guduri Rama Krishna, B.Sc., B.L.,

Principal District Judge,

Krishna at Machilipatnam

Wednesday, this the 15th day of December, 2021

Appeal Suit No.33 of 2020

Between:

Canara Bank, Machilipatnam Branch, represented by its Branch Manager, Krishna District. … Appellant/Plaintiff

A n d

Kumbham Sambasiva Rao, S/o. Nageswara Rao, Hindu, 35 years, Cultivation, R/o. Lellagaruvu village, Guduru Mandal, Krishna District. … Respondent/Defendant

ON APPEAL AGAINST THE JUDGMENT AND DECREE IN O.S.NO.380 OF 2018 PASSED BY THE PRINCIPAL JUNIOR CIVIL JUDGE, MACHILIPATNAM ON 06.01.2020, MADE IN:

Canara Bank, Machilipatnam Branch, represented by its Branch Manager, Krishna District. … Plaintiff

A n d

Kumbham Sambasiva Rao, S/o. Nageswara Rao, Hindu, 35 years, Cultivation, R/o. Lellagaruvu village, Guduru Mandal, Krishna District. … Defendant

The appellant/plaintiff filed the appeal under Section 96 Order XLI Rule 1 of CPC praying this Court to set-aside the Decree and Judgment passed by the learned Principal Junior Civil Judge, Machilipatnam in O.S.No.380 of 2018, dt.06.01.2020 and for costs.

This appeal is coming before me on this day for payment of batta to issue fresh notice to respondent/defendant in the presence of Sri P. Surya Prakash, Advocate for the Appellant/Plaintiff and the matter is having stood over for consideration till this day and this Court delivered the following:

J U D G M E N T

The counsel for appellant filed a memo stating that the respondent/defendant paid the loan amount under one time

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Principal District Judge,

Appeal Suit No.33 of 2020 Krishna, Machilipatnam.

Dt: 15.12.2021.

settlement. Hence, prayed the Court to dismiss the appeal. Memo is recorded. Appeal is DISMISSED AS SETTLED OUT OF COURT.

Pronounced by me in open Court on this the 15 th day of December, 2021.

Principal District Judge,

Krishna, Machilipatnam. Appendix of Evidence - No oral or documentary evidence has been adduced

before the Appellate Court –

Principal District Judge,

Krishna, Machilipatnam.

Copy to:

The Principal Junior Civil Judge, Machilipatnam.

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