1
OS.39 of 2014
IN THE COURT OF THE PRL. SENIOR CIVIL JUDGE: NIZAMABAD.
Present: Sri J.Vikram, Secretary, Dist. Legal Services Authority, Nizamabad, FAC: Prl. Senior Civil Judge, Nizamabad.
Wednesday, the 17th day of August, 2022.
OS.No. 39 of 2014
Between: Sri Kura Bagaiah S/o Kura Buchanna about 50 years, Occ: Agriculture, R/o H.No.5-47, Dubbak (village), Dharpally (Mandal), Nizamabad District.
Plaintiff…..
1. Manda Rajanna S/o Manda Nadipi Limbanna, aged about 45 years, Occ: Agriculture, R/o H.No.3-122/4/2, Doozgaon of village of Dichpally Mandal of Nizamabad District.
2. Smt.Manda Laxmi S/o Manda Rajanna, aged about 40 years, Occ: Agriculture, R/o H.No.3-122/4/2, Doozgaon of village of Dichpally Mandal of Nizamabad District. Defendant Nos.1 & 2.
This suit is coming on 11.08.2022 before me for final hearing in the presence of Sri Sher Subhash, Advocate for the Plaintiff and
Sri G.V. Krupakar Reddy, Advocate for the defendant No.2 and defendant
No.1 remained exparte and the court has made the following.
:: J U D G M E N T::
This is a suit filed for recovery of amount basing on the promissory note dated 24.02.2011 for recovery of amount of Rs.5,61,022/- (Rupees
Five Lakhs Sixty One Thousand twenty two Rupees Only) with interest @ 24 % per annum from 24.02.2011 to 12.02.2014.
2
OS.39 of 2014
2.Brief facts of the case are: -
The plaintiff and defendants 1 and 2 are related to each other as the defendants daughter was given in marriage to the son of Plaintiff.
Therefore out of such acquaintance the defendants 1 and 2 approached the plaintiff and requested for hand loan of Rs.3,50,000/- for their personal and legal necessities for daughters marriage. The said plaintiff could able to only arrange Rs.3,27,700/- (Rupees Three Lakhs Twenty Seven Thousand
Seven Hundred Rupees Only) and accordingly he lent the same to the defendants 1 and 2.
3.The defendants 1 and2 executed the demand promissory note in favor of the plaintiff on 24.02.02011 at Dubbak (village), Dharplly Mandal,
Nizamabad District jointly in favor of the plaintiff and agreed to repay the amount with interest @24 percent per Annum on the Principle amount of
Rs.3,27,700/- within one year from the date of execution.
4.The plaintiff submits that from the date of execution of promissory note the defendants 1 and 2 neither paid the interest nor repaid the principle amount on demand. Apart from that the defendants filed false criminal case against plaintiff and his family member and therefore having vexed with the attitude of the defendants this suit is filed against defendants 1 and 2 for recovery of suit amount along with interest.
3
OS.39 of 2014
5.The defendant No.1 was set ex-parte and remained Ex parted till this date.
The defendant No.2 filed written statement denying the alleged transaction that the plaintiff has fabricated and created the alleged promissory note by forgering the thumb impression which do not belongs to this defendants. It is further contended that the defendants are self sufficient and they were never in need of money for the marriage . It is also contended that the defendant No.1 is working in Dubai since several years and that the defendant No.1 mother-in-laws village is Mullangi and the defendants stayed their for few years and during which period the defendant No.1 obtained the passport in which the family name is mentioned as Peddola Rajanna which is the surname of his wife’s parents.
Hence, the defendants No.1 is also called as Manda Rajanna @ Peddola
Rajanna. It is also contended that as on 24.02.2011 the defendant No.1 is not in India and he was in Dubai as such question of borrowing money on 24.02.02011 executing the alleged promissory note does not arise. It is also denied that the plaintiff has demanded to repay denied amount from the defendants and Defendant No.1
6.It is contended that the daughter of the Defendants is given in the marriage to the son of the plaintiff and at the time of marriage on demand 4
OS.39 of 2014
Rs.1,00,000/-, Rs.50,000/- towards motorcycle, 1 tulas gold and Rs.60,000/- (Rupees Sixty Thousand Only) house hold articles were given. Later, plaintiff and his family members started harassing their daughter for the
additional dowry or Rs.1,00,000/-. In the month of September 2012, as the
harassment has exceeded the daughter of these defendants came to their house and panchayat was held wherein, the son in law promised to look after their daughter but again started harassment by demanding additional dowry with the month of January. Subsequently, the daughter of
Defendants filed a case before the police Dichpally against the plaintiff, his wife, sons and daughter which is pending. Further, contents that the plaintiff and his son and alleged crime and witness conspired and forged and fabricated the alleged promissory note. Later, the criminal case was compromised and plaintiff promised to withdraw the suit but he has not withdrawn the same. Thus the said suit is entitled to be dismissed.
7.Heard the learned counsel perused the material on record.
The following issues were framed by my learned predecessor.
1. Whether suit promissory note dated 24.02.2011 for Rs.3,27,700/- is true, valid, supported by consideration and binding on the defendants?
2. Whether the plaintiff is entitled to recover the suit claim amount of
Rs.5,61,022/- with cost and interest from the defendants as prayed for ?
5
OS.39 of 2014
3. To what relief?
8.As Issues 1 and 2 interested therefore, they are answered jointly to avoid repetition and for proper appreciation of facts on hand.
9.The plaintiff to establish the case facts filed his chief affidavit and sworn in as Pw1 and got marked Ex.A1. To further substantiate his case he also examined Pw2 who is the scribe of the promissory note. That the defendant No.2 filed her chief affidavit as Dw1 and got marked Ex.B1 (02) passports of Peddolla Rajanna), the defendant No.1 filed his chief affidavit and got examined as DW2.
10.Now, coming to the facts on hand since the present suit is filed for recovery of amount therefore, the plaintiff/Pw1 is having the burden to establish that the defendants 1 and 2 borrowed the suit principle amount and failed to repay the same with interest.
This Court has perused the material on record and observed that there is no denial in respect of the relationship between both the parties so also, there is no denial that the defendants have filed a criminal case against the plaintiffs which was subsequently compromised between both the parties. Thus, the burden to the extent that the defendants 1 and 2 have borrowed the amount needs to be establish by the Pw1 and that the thumb impression belongs to defendant Nos.1 and 2.
6
OS.39 of 2014
11.After going through the documentary evidence on record, it shows that Pw1 has relied on Ex.A1. It categorically shows that on 24.02.2011,
Ex.A1 was executed for Rs.3,27,700/- and it was scribed by Pw2, also Ex.A1 transaction was witnessed by one Syed Ali as per the Signature affixed by him on Ex.A1. However, the defendants have denied the execution of
Ex.A1 and as well as denied the thumb impressions alleging that they are forged and fabricated.
12.Now coming to the oral evidence of PWs 1 and 2, the contents of chief affidavits filed are in consequence with that of plaint averments. The cross examination of Pw1 suggests that the present suit is filed after the disposal of criminal case. It further shows that the said criminal case on which was compromised and the divorce was granted between his son and his wife. It further goes to show that the plaintiff and defendants have agreed to withdraw the criminal case in which the plaintiff agreed not to file the suit but it shows that the plaintiff though accepted the terms but failed to comply the same and in turn as admitted by him, has filed the present suit for recovery of money against the defendants. As per Pw1 evidence he stated that the defendants themselves got Ex.A1 after filling the blanks of Ex.A1, whereas, Pw2 in his chief affidavit stated that Ex.A1 was drafted by him and it is witnessed by one Syed Ali.
7
OS.39 of 2014
13.Pw2 evidence goes to show that Pw1 is his father and the defendants 1 and 2 are parents in law of his brother. He admitted that D1 is working abroad and that Ex.A1 was executed at his house. He also admitted that the criminal case which is filed by his sister in law U/s 498(A) was compromised after issuing of legal notice to the defendants in this suit.
14.Now, coming to the evidence of Defendant side on perusal of documents coupled with the oral evidence it establishes that the defendant
No.1 is holding a passport in his name and the entries in the passport reveals that the said defendant No.1 is working in Dubai. Ex.B1 contents shows that the first passport was issued at Hyderabad and the validity of the passport is from 09.02.2001 and which expired on 08.02.2011. The
Second passport was issued on Dubai and the validity is from 04.01.2011 and expired on 03.01.2021.
15.In order to ascertain that whether the defendant No.1 was in abroad (Dubai) on the alleged date of execution this court has scrutinized the contents of Ex.B1. It is observed that the entries in Ex.B1 categorically establishes at Page No.18 that the defendant No.1 arrived to India on 7.11.2013 as per the stamp affixed and he left in the month of January, 2014. The evidence of DW1 further goes to show that the defendant No.1 is a native of Doosgaon village of Dichpally Mandal and the plaintiff is 8
OS.39 of 2014
the native of Dubbaka Village. It further suggests that the plaintiff tried to establish by suggesting that the defendant was present in India as on the date of the execution of Ex.A1 but it was denied by DW1. Further, it is also suggested that on 24.02.2011 one syed Ali stood as witness and
K. Srinivas scribed the promissory note which suggestion was also denied by Dw-1. It is pertinent note that Dw1 was cross examined on the aspect that the name shown on Ex.B1 is mentioned as Peddola Rajanna and he is different from Defendant No.1 ( Manda Rajanna) but it is denied by DW1 and deposed that the Defendant No.1 stayed at their parents house for 02 years therefore, he was called as Peddola Rajanna during which period the
Ex.B1 was obtained. Except mere suggestion the plaintiff was not able to establish that the Ex.B2 shown to belong to DW1 is not the same person.
16.DW2 is the defendant No.1 who filed his chief affidavit who deposed that defendant No.2/DW1 is his wife. He denied the thumb impression on
Ex.A1. He stated further that he was in Dubai from the Year 2010 and stayed in Dubai till 11.03.2011. Hence, stated that he was not in India on 24.02.2011 as on alleged date of execution of Ex.A1. Further, he deposed that the plaintiff and his family members stated harassing his daughter for
additional dowry of Rs.1,00,000/- in the month of September, 2012 and
therefore, a criminal case is registered for which the plaintiff and his son along with the witness forged and fabricated the alleged promissory note 9
OS.39 of 2014
to cause loss to the Defendant No.1.
17.The cross examination of Dw2 goes to show that though he was cross examined extensively on the aspect that he has borrowed the suit amount and executed the Ex.A1 and that Ex.B1 reveals that he was at Nizamabad on the date of execution of Ex.A1 to which suggestions DW2 has denied.
18.From the above evidence of both the parties it can be held that Pw1 who is having burden to establish execution of the Ex.A1 has failed to prove the same by placing relevant material and documentary evidence.
it can also held that Pw1 has examined the scribed who is his own son, hence in view of the disputes since already pending between both the parties it becomes important for Pw1 to Examine an independent witness to establish that Dws 1 and 2 have executed Ex.A1 and that they received consideration under Ex.A1 in the presence of the independent witness.
Therefore, Pw1 has failed to examine the independent witness and most importantly the witness by name Syed Ali whose name is shown as witness in Ex.A1 therefore goes to suggests that Pw1 has utterly failed to discharge the burden which lies upon him.
Apart from the above though PW1 took steps to forward Ex.A1 for expert opinion along with specimen thumb impression of D1 and D2 but it was returned by reporting as they are “smudged, not clear and 10
OS.39 of 2014
wanting clear ridge characteristics for the purpose of establishing
identity. Hence, this disputed thumb impressions marked as D1
and D2 are unfit for comparission”
19.Therefore, It can be held that the Pw1 could not get any benefit though taking the aid of the expert opinion. Hence, it is considered that the case of Pw1 viewed from any angle goes to establish that he could not prove the execution of Ex.A1 by defendants 1 and 2 and that the consideration has passed to them under the Ex.A1.
20.It is further held that from the evidence of Dws 1 and 2 and Ex.B1,
Defendant No.1 was not in India on the date of execution of Ex.A1. As there is no material placed before this court to disbelieve that the person who is appearing in Ex.B1 is not the defendant NO.1 as suggested to Dw2 in his cross examination, therefore, due to lack of relevant documentary/ oral proof it entirely goes against the case of Pw1 to enable this Court to draw any adverse inference against the defendants 1 and 2. It is held that even as per own admissions of Pw1 and 2 already the criminal case which was lodged by the daughter of Defendant Nos.1 and 2 against the plaintiff, his son and family members was later compromised in the presence of elders and divorce was also obtained by both of them.
Therefore, It leads to a presumption in the mind that due to the criminal 11
OS.39 of 2014
disputes the plaintiff with the aid of Pw2 must have fabricated ExA1 to cause wrongful loss to the defendants 1 and 2.
21.Hence, in view of the facts and circumstances and reasons assigned by this Court above, it is of the opinion that the Plaintiff utterly has failed to establish Issues 1 and 2 beyond all the probabilities. Therefore, the suit promissory note dated 24.02.2011 for Rs.3,27,700/- is not true, valid and supported by consideration and therefore do not bind on the defendants 1 & 2. Thus, the plaintiff is not entitled for recovery of suit claim amount of
Rs.5,61,022/- with cost and interest from the defendants 1 and 2 as prayed for.
Hence, Issues 1 and 2 answered accordingly against the plaintiff.
Issue No.03: -
To what relief.
In the result, the suit is dismissed without costs.
Typed to my dictation, corrected and pronounced by me in open Court, on this the 17 th day of August , 2022.
Sd/-
FAC: Prl. Senior Civil Judge Nizamabad.
12
OS.39 of 2014
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFFOR DEFENDANTS
PW-1: Sri Kura Bagaiah DW.1: Manda Laxmi Pw-2: Sri K.Srinivas. DW2: Manda Rajanna
EXHIBITS MARKED
(On behalf of the)
FOR PLAINTIFF
Ex.A1: is the Promissory note dated dt. 24-02-2011.
FOR DEFENDANT
Ex.B-1 is the Passport(2) of Peddola Rajanna.
Sd/-
FAC: Prl. Senior Civil Judge, Nizamabad